Seized at the age of 15 in Afghanistan, where he had been taken by his father, who was allegedly a fundraiser for al-Qaeda, Omar was abused by the US authorities at Bagram and then Guantánamo, and was then put forward for a war crimes trial, and he has also been neglected throughout his long ordeal by the Canadian government. Neither country cared that he was a juvenile prisoner when seized, and should have been rehabilitated rather then punished, as stipulated in the UN Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, even though Canada, in particular, has stood up for the rights of child soldiers in other countries.

In October 2010, the Obama administration reached a particularly low point in its respect for the law, when Omar was obliged to agree to a plea deal in his trial by Military Commission in exchange for a promise that, as a result, he would serve an eight-year sentence, with just one more year at Guantánamo followed by seven years back in Canada.

In the plea deal, Omar accepted that he had thrown a grenade that killed a US soldier during the firefight that led to his capture in July 2002 (even though that may not have been true), and also agreed that he was an “alien unprivileged enemy belligerent,” who was guilty of war crimes because he was not entitled, under any circumstances, to be engaged in a combat situation with US forces, even though he was captured in a war zone in a country in which the US was at war.

This whole saga is disgraceful, but for the last two months what has been particularly distressing and disturbing is that Omar is still held at Guantánamo, even though, according to the terms of the plea deal, he was supposed to have been transferred to Canadian custody.

As the Globe and Mail reported this week, John Norris, a member of Omar’s Canadian legal team, said of his client, “He’s frustrated, he wants to get on with his life.” The article also noted that both the US and Canadian governments are still claiming, as they did when the deadline passed on October 31, that “the delays are just part of a complicated process, that there is no willful foot-dragging,” as though they haven’t had a year to prepare.

Pentagon spokesperson Lt. Col. Todd Breasseale pointed out that, due to legislation passed by Congress, one problem is that the US defence secretary Leon Panetta “must ‘certify’ to Congress that Canada is a fit place to send a convicted terrorist, a nation not likely to permit him to attack the United States, and one that has control of its prisons.” The Globe and Mail added, “That hasn’t happened and Mr. Khadr can’t go anywhere until it does.” Lt. Col. Breasseale also explained that the Congressional imposition “restricts our ability to transfer detainees from GTMO for 30 days after we inform Congress of our intent to transfer the individual, but levies no requirements after the 30 days.”

This is a ridiculous situation, of course, as Canada can hardly be regarded as an unsafe country by all but the most paranoid and unhinged members of Congress, but the Globe and Mail claimed that this might be embarrassing for Leon Panetta, and described “the odd, and potentially embarrassing, requirement of formally certifying to Congress that a close ally could be trusted not to allow a convicted terrorist to attack American again.”

Ironically, the new National Defence Authorization Act, which has caused great consternation because of its deranged provision for the mandatory military custody of all terror suspects, “allows for transfers without certification in cases where a pre-trial agreement was signed,” as the Globe and Mail explained.

In the most alarming passage in the article, it was claimed that Omar’s plea deal “allowed for repatriation to Canada but didn’t explicitly guarantee it” — which strikes me as a rather casual revisionism, when the whole purpose of the plea deal was to guarantee Omar’s return to Canada — and this was followed by a quote from an unnamed US official, who stated bluntly, “Your country doesn’t want him back.”

Sadly, Omar’s lawyers are in the dark about his future. “I wish I knew, I wish they would tell us,” John Norris said. “So far we have received no word about a transfer date.”

The Globe and Mail noted that some legal experts believe Omar “has a strong case under Canadian law to seek release soon after he is repatriated,” and that, “[e]ven if he serves the usual one-third of his sentence, before being paroled, he could be free in 2013.” That, however depends on him being allowed to leave Guantánamo, and as was noted in an article in The Lawyers Weekly  on December 16, it was obviously no coincidence that, on the day that Omar became eligible for transfer to Canada, Public Safety Minister Vic Toews “told the House of Commons that Khadr had ‘voluntarily’ pleaded guilty” to the charge of killing a US soldier. As a result, there are fears that the International Transfer of Offenders Act (ITOA), passed in 2004, under which Omar would be returned, could be conveniently amended under new legislation to give the minister “the ability to deny a Canadian offender the right to return if it would ‘endanger public safety.’”

Errol Mendes, a law professor at the University of Ottawa, spelled out these fears clearly, stating that he “fears the Harper government may play to its Conservative base, for whom Khadr is ‘hugely unpopular,’ and let him ‘rot in hell’ before allowing his return to Canada.”

Is this appropriate behaviour over nine years after Omar Khadr was first seized? I believe it is not, however much right-wingers in Canada ignore the fact that he was a child when seized, and seem to believe that he should be abandoned forever or stripped of his citizenship because of the perceived sins of his father. Omar has lost nearly half his life in Guantánamo, and has been imprisoned for longer than the whole of the Second World War, and it is time for him to be repatriated. He is, after all, a human being, despite the persistent attempts to dehumanize him. As John Norris explained, “His spirit is very strong. He’s a serious young man who’s working very hard on his studies in Canadian literature, geography and history. He’s also quite engaging.”

That has always been apparent to those who knew Omar, and it was made particularly obvious over a year ago, in a report about his exchange of letters with a literature professor in Canada, which, if you have the time, I recommend reading. As I explained at the time, the comments by Omar that I found the most moving were the following:

Children’s hearts are like a sponge that will absorb what is around it, like wet cement, soft until it is sculptured in a certain way. A child’s soul is a sacred dough that must be shaped in a holy way.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook, Twitter, Digg and YouTube). Also see my definitive Guantánamo prisoner list, updated in June 2011, “The Complete Guantánamo Files,” a 70-part, million-word series drawing on files released by WikiLeaks in April 2011, and details about the documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and available on DVD here — or here for the US). Also see my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.

No one thought that Khadr would return to Canada as a free man, as he has another seven years to serve in a Canadian jail as part of a plea deal he made at Guantánamo a year ago, but it was reasonable to expect that he would be transferred to Canadian custody this week, as the plea deal was for an eight-year sentence — with one year to be served in Guantánamo, followed by seven in Canada.

However, as Canada.com explained last Friday, “It could be as many as 18 months before Omar Khadr steps foot in Canada even though he becomes eligible for transfer from Guantánamo Bay on Monday” (October 31).

Throughout this entire story, the behavior of the United States government, first under President Bush, and then under President Obama, has been disgraceful. Khadr was abused, and was never rehabilitated according to the Optional Protocol to the UN Convention on the Rights of the Child on the involvement of children in armed conflict, which stipulates that juvenile prisoners — those under 18 at the time their alleged crime takes place — “require special protection,” and obliges its signatories to promote “the physical and psychosocial rehabilitation and social reintegration of children who are victims of armed conflict.”

In addition, Khadr was put forward for a trial by military commission — a war crimes trial — even though he was a child at the time of his capture, even though it is not clear that he had killed a US soldier by throwing a grenade, as alleged, and even though the entire premise of the trial was wrong.

It was deeply disturbing that the US government was willing to suggest to the world that those who raise arms against US forces in wartime, and in a country where the US is engaged in a war, can actually be defined as war criminals, even if their only target is members of the US military.

And yet this, of course, is exactly what happened to Khadr, when, a year ago, he signed the plea deal that was supposed to guarantee his release, in which he admitted to being an “alien unprivileged enemy belligerent,” who had no right, under any circumstances, to engage in combat with US military forces, and who, as a result of doing so, was a war criminal.

That was shocking enough, and it was no more reassuring that, on October 31, 2010, Khadr was given a 40-year sentence by a military jury after a week of hearings at Guantánamo. This was supposed to reassure supporters of Guantánamo and the military commissions that Obama was tough on terrorism, while the plea deal was supposed to send the message to critics of Guantánamo that he was fair. However, from the point of view of fairness and the law, the entire process was an abomination, and represents a low point for US justice and for any reputation for fairness that President Obama hoped to bring to his Presidency.

For Khadr, the plea deal was obviously supposed to be a lifeline, which is what makes the news from Canada so upsetting. The Canadian government’s behavior has been shameful ever since Khadr was first captured. Intelligence agents were sent to interrogate him, even though that was a clear violation of his rights, given the disturbing circumstances of his confinement in Guantánamo, and a series of challenges in the Canadian courts culminated in the Supreme Court ruling that the government had indeed failed to protect Khadr’s rights, although the Court refused to order the government to seek his return, and the government responded by ignoring the ruling.

Now, however, the signs are that the Canadian government looks set to fail Khadr again. Canada.com noted that the closest the government had come to guaranteeing that Khadr would be coming back to Canada to serve the rest of his sentence was “a diplomatic note between US and Canadian officials,” which stated that the Harper government  was “inclined to favourably consider” a request for Khadr’s transfer back to the country of his birth.

Several weeks ago, Khadr’s Canadian lawyers confirmed that “the transfer process had been initiated,” but Michael Patton, a spokesman for Public Safety Minister Vic Toews, said that securing the return of a prisoner from another country was a “big process.” He explained that the Correctional Service had to “determine whether the applicant is eligible for a transfer,” then the government holding the prisoner had to agree to it, and then the Correctional Service had to “put together a recommendation to the Minister who must review and approve it.”

Patton said, “These files normally take about 18 months to come to a decision,” and Canada.com claimed that Khadr’s case was “unlikely to be expedited or treated differently,” even though the government has obviously had an entire year to prepare for Khadr’s return.

In the Globe and Mail, Paul Koring discussed other options, noting that the Harper government could “approve and quickly facilitate” Khadr’s return, possibly within months, if he were to “agree to abandon any further constitutional challenges,” according to “lawyers familiar with his case.”

On the other hand, some lawyers told the Globe and Mail that Khadr could be free “in less than a year if he takes his case again to the Canadian courts.” These lawyers believe Khadr could challenge both his war crimes conviction and the sentence he was given, on the basis that “both were illegal under international law.”

Koring noted that a constitutional challenge by Khadr “could embarrass the government and force public disclosure of the role its agents played” in his interrogations at Guantánamo, although it would also “cast him again in the spotlight,” which might be damaging for his cause in Canada. This is because part of the basis for Khadr’s shameful treatment has been that many Canadians have been prepared to ignore his immense ill-treatment by making him the object of punishment for the perceived sins of his father, Ahmed Khadr, who allegedly raised funds for Osama bin Laden.

As Paul Koring also noted, “the Harper government has so far shown no interest in getting Mr. Khadr freed or back in Canada.” This shameful situation must end as soon as possible, and Khadr, I believe, should be freed on his return to Canada, as a gesture of support from a government that shamefully abandoned him for the best part of a decade.

Khadr’s release from Guantánamo will also focus attention once more on what should be an abiding source of shame for Barack Obama, but has been largely overlooked — the continued presence of 171 prisoners at Guantánamo, even though the government conceded, after a year-long review in 2009, that it did not wish to hold over half of these men.

With their release blocked by Congress, and by judges in the Court of Appeals in Washington D.C., who have gutted habeas corpus of all meaning when it comes to the Guantánamo prisoners, Omar Khadr’s release would also remind the world of some of these other men, unjustly overlooked as the 10th anniversary of the opening of Guantánamo approaches.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook, Twitter, Digg and YouTube). Also see my definitive Guantánamo prisoner list, updated in June 2011, “The Complete Guantánamo Files,” a 70-part, million-word series drawing on files released by WikiLeaks in April 2011, and details about the documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and available on DVD here — or here for the US). Also see my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.

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

I attended a Q&A session after a London screening of this film back in June, and also took part in a discussion about it on Press TV (available in two parts here and here), so I was pleased to be able to revisit it, especially as the story of Omar Khadr is so central to the injustices of Guantanamo, and also because, barring any last-minute horrors on the part of the Obama administration, he is due to be released from Guantanamo to Canada on October 31.

Khadr was only 15 when he was seized in July 2002, after a firefight in which he allegedly threw a grenade that killed a US soldier — although serious doubts have been expressed about whether he actually threw the grenade, as he was apparently unconscious, face down, and half-buried under rubble at the time, and his lawyers claimed that the initial reports of the firefight were amended afterwards to incriminate him.

The whole story of his treatment, as I told Scott, has been disgraceful, both on the part of the US administration under George W. Bush and also under Barack Obama, and also of the various Canadian governments over the last nine years. America initially abused him under President Bush, but last fall hit a new low under President Obama, when Khadr agreed to a plea deal in his trial by Military Commission, signing a disgraceful document in which he accepted responsibility for the actions he took when he was 15, in a situation in which he had been placed by his father, and accepted that he was an “alien unprivileged enemy belligerent,” who was not allowed to engage in combat with US forces under any circumstances.

America, disgracefully, may have abused a child and, just as disgracefully, have unilaterally criminalized warfare for its enemies, making “war” against the US into a “war crime,” but Canada does not come out of this story any better, having consistently neglected Omar Khadr, despite his Canadian citizenship, as the footage of the interrogations, shown and discussed in this film, demonstrates – especially in the sections in which Omar weeps uncontrollably when he realizes that he has been betrayed by the country of his birth.

The blunt truth is that the Canadian government — and many Canadian people — have been content to blame Omar for the perceived sins of his father, Ahmed Khadr, an alleged fundraiser for Osama bin Laden, who was killed in Pakistan in October 2003, and to ignore the fact that, when it comes to the rights of child soldiers in other conflicts, Canada has led the way in calling for rehabilitation and not punishment, but when it comes to Omar Khadr, the only response has been hypocrisy and cruel indifference.

It was great to speak to Scott again, and I hope that, if you have 20 minutes to spare, you can listen to the show. In addition, if you’re interested in seeing the film, please check out the website, and please also feel free to check out my archive of articles about Omar Khadr here.

And this, for your information, is how Scott described the show:

Andy Worthington, author of The Guantánamo Files, discusses the film You Don’t Like the Truth: 4 Days Inside Guantánamo about child soldier and Canadian citizen Omar Khadr’s interrogation in Guantánamo; Khadr’s travails in Afghanistan, where he was nearly killed by a US airstrike then captured and accused of killing a medic; the US government’s decision to treat child soldiers as regular prisoners in contravention of international norms; and how military commissions have made it a war crime to fight against US invasions and occupations.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook, Twitter, Digg and YouTube). Also see my definitive Guantánamo prisoner list, updated in June 2011, “The Complete Guantánamo Files,” a 70-part, million-word series drawing on files released by WikiLeaks in April 2011, and details about the documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and available on DVD here — or here for the US). Also see my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.

However, readers in London who are interested in this film can see it tomorrow (June 19) in University College London (UCL), in central London, as part of a weekend of Guantánamo films put together by Dochouse. Based at Riverside Studios, in Hammersmith, Dochouse has been supporting and promoting documentaries in the UK since 2002. The “Exposing Guantánamo” weekend is part of the Open City London Documentary Festival, which also features “Outside the Law: Stories from Guantánamo” (which I directed with Polly Nash).

For further information about “Exposing Guantánamo,” see my article here (providing further details about the “Exposing Guantánamo” weekend), in which I described “You Don’t Like the Truth” as follows:

This powerful new film features excerpts from seven hours of video footage of Canadian agents interrogating child prisoner and Canadian citizen Omar Khadr at Guantánamo over a four-day period in 2003. It reveals how his joy at meeting representatives of his own government turned to despair when he realized that they had not come to Guantánamo to help him, and important commentary on the footage is provided by Khadr’s US and Canadian lawyers, by journalist Michelle Shephard, by former US guard Damien Corsetti, and by former prisoners, including Omar Deghayes and Moazzam Begg. The footage was released by the Canadian courts after a ruling that Khadr’s rights had been violated, which was subsequently ignored by the Canadian government.

On Press TV, I discussed “You Don’t Like the Truth” on the Cinepolitics show, with host Russell Michaels and film critic Neil Smith. I made the first half of the 24-minute show available in my previous article (and it’s also on my YouTube channel), and I’ve now added the second part below.

As I explained previously, the show is an excellent introduction to the distressing treatment of Omar Khadr by the US, and by Canada, since he was captured, at the age of 15, in July 2002. This culminated, last October, with his disgraceful show trial, in which he accepted a plea deal and confessed to being an “alien unprivileged enemy belligerent,” even though he was just a child, even though it is not actually illegal to fight US soldiers in wartime, and even though the US ignored its obligations to rehabilitate rather than punish juvenile prisoners, according to the UN Optional Protocol on the rights of children in armed conflict.

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

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

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

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

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

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

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

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

I would say, despite their age, these are very, very dangerous people. They are people that have been vetted mainly in Afghanistan and gone through a thorough process to determine what their involvement was. Some have killed. Some have stated they’re going to kill again. So they may be juveniles, but they’re not on a little-league team anywhere, they’re on a major league team, and it’s a terrorist team. And they’re in Guantánamo for a very good reason — for our safety, for your safety.

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

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

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

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

The 22 juveniles held at Guantánamo

(i) The three still held

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

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

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

(ii) The Afghans

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

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

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

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

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

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

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

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

(iii) The Pakistanis

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

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

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

(iv) The Saudis

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

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

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

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

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

(v) The others

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

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

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

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

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

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

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

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

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

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

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

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

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

Readers in London who are interested in this film can see it on June 19 in UCL (University College London), as part of a weekend of Guantánamo films put together by Dochouse, an organization based at Riverside Studios, in Hammersmith, which has been supporting and promoting documentaries in the UK since 2002. The “Exposing Guantánamo” weekend is part of the Open City London Documentary Festival, which also features “Outside the Law: Stories from Guantánamo” (which I directed with Polly Nash).

For further information about “Exposing Guantánamo,” see my article here, in which I described “You Don’t Like the Truth” as follows:

This powerful new film features excerpts from seven hours of video footage of Canadian agents interrogating child prisoner and Canadian citizen Omar Khadr at Guantánamo over a four-day period in 2003. It reveals how his joy at meeting representatives of his own government turned to despair when he realized that they had not come to Guantánamo to help him, and important commentary on the footage is provided by Khadr’s US and Canadian lawyers, by journalist Michelle Shephard, by former US guard Damien Corsetti, and by former prisoners, including Omar Deghayes and Moazzam Begg. The footage was released by the Canadian courts after a ruling that Khadr’s rights had been violated, which was subsequently ignored by the Canadian government.

On Press TV, I discussed “You Don’t Like the Truth” on the Cinepolitics show, with host Russell Michaels and film critic Neil Smith. The first half of the 24-minute show is below and is an excellent introduction to the distressing treatment of Omar Khadr by the US, and by Canada, since he was captured, at the age of 15, in July 2002 — and I’ll put up the second part of the show when it becomes available.

The bleak treatment of Omar Khadr culminated, last October, with his disgraceful show trial, in which he accepted a plea deal and confessed to being an “alien unprivileged enemy belligerent,” even though he was just a child, even though it is not actually illegal to fight US soldiers in wartime, and even though the US ignored its obligations to rehabilitate rather than punish juvenile prisoners, according to the UN Optional Protocol on the rights of children in armed conflict:

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

“[T]his is a strong movie examining the imprisonment and subsequent torture of those falsely accused of anti-American conspiracy.”
Joe Burnham, Time Out

“Every American needs to watch this film. Or at least every mouthpiece in the corporate media. They should broadcast this instead of the WWII Holocaust documentaries, which play on rotation on the cable networks.”
Alexa O’Brien, journalist, WL Central

As featured on Democracy Now!, ABC News and Truthout. Buy the DVD here (£10 + £2 postage in the UK, and worldwide) or here if in the US ($10 post free).

On Sunday June 19, as part of the Open City London Documentary Festival, described at its launch as “London’s newest film festival,” there will be a screening of the documentary film, “Outside the Law: Stories from Guantánamo” (directed by Polly Nash and Andy Worthington), at 1.40 pm on Sunday June 19 in the AV Hill Lecture Theatre in UCL. Tickets for all the screenings cost £5, and readers can book a ticket for “Outside the Law” here, or by phone on 020 7679 4907.

The festival, which runs from June 16 to June 19, features over 170 full-length feature films and shorts, showing in various lecture theatres in UCL (plus some outside collaborations). The main address of UCL (University College London) is Gower Street, London, WC1E 6BT, and please see here for a campus map.

The screening of “Outside the Law: Stories from Guantánamo” is part of a weekend of events put together by Dochouse, an organization based at Riverside Studios, in Hammersmith, which was formed to support and promote documentary in the UK, and, since 2002, has been showcasing the best documentary films from around the globe, with screenings and events in cinemas across London. In November 2009, Dochouse screened “Outside the Law: Stories from Guantanamo” with “Gitmo: The New Rules of War” at the Prince Charles Cinema in London’s West End.

Now, as part of “Open City,” and under the heading, “Exposing Guantánamo,” Dochouse is screening four films that focus on Guantánamo, as follows:

Saturday June 18, 7.20 pm: The Road to Guantánamo (Michael Winterbottom and Mat Whitecross, 2006, 100 mins.)
Screen 4, Medawar Building, UCL.
The award-winning docudrama that first brought the injustices of Guantánamo to a wide audience tells the story of three British prisoners, the “Tipton Three,” through interviews and harrowing, dramatic recreations of their experiences in US custody. This is the film that, with Moazzam Begg’s book Enemy Combatant, changed my life back in the spring of 2006 and encouraged me to believe that it was worthwhile researching and writing a book — The Guantánamo Files — that attempted to tell the stories of all the prisoners in Guantánamo.
Book a ticket here, or phone 020 7679 4907, and see map here.

Sunday June 19, 10.20 am: Gitmo: The New Rules of War (Erik Gandini and Tarik Saleh, 2005, 80 mins.)
Screen 1, Festival Hub, Engineering Building, Torrington Place, UCL.
An early exploration of Guantánamo, in which the filmmakers searched for the meaning of Guantánamo after taking part in a press visit to the prison, in a narrative that spliced their own explorations with footage of George W. Bush, Osama bin Laden and Donald Rumsfeld.
Book a ticket here, or phone 020 7679 4907, and see map here.

Sunday June 19, 1.40 pm: Outside the Law: Stories from Guantánamo (Polly Nash and Andy Worthington, 2009, 75 mins.)
AV Hill Lecture Theatre, South Junction, Malet Place, UCL.
“Outside the Law” focuses on the stories of three British prisoners — Shaker Aamer (who is still held, and is the subject of an ongoing campaign to secure his return) and Omar Deghayes and Binyam Mohamed (both released). The film looks at how the Bush administration turned its back on domestic and international laws after 9/11, and examines how prisoners were rounded up in Afghanistan and Pakistan without adequate screening, and why some of these men may have been in Afghanistan or Pakistan for reasons unconnected with militancy or terrorism. The film provides a powerful rebuke to those who believe that Guantánamo holds “the worst of the worst” and that the Bush administration was justified in responding to the terrorist attacks of September 11, 2001 by holding men neither as prisoners of war, protected by the Geneva Conventions, nor as criminal suspects with habeas corpus rights, but as “illegal enemy combatants” with no rights whatsoever.
Book a ticket here, or phone 020 7679 4907, and see map here.

Sunday June 19, 3.40 pm: You Don’t Like the Truth: 4 Days Inside Guantánamo (Luc Cote and Patricio Hernandez, 2010, 100 mins.)
Darwin Theatre, Malet Place, UCL.
This powerful new film features excerpts from seven hours of video footage of Canadian agents interrogating child prisoner and Canadian citizen Omar Khadr at Guantánamo over a four-day period in 2003. It reveals how his joy at meeting representatives of his own government turned to despair when he realized that they had not come to Guantánamo to help him, and important commentary on the footage is provided by Khadr’s US and Canadian lawyers, by journalist Michelle Shephard, by former US guard Damien Corsetti, and by former prisoners, including Omar Deghayes and Moazzam Begg. The footage was released by the Canadian courts after a ruling that Khadr’s rights had been violated, which was subsequently ignored by the Canadian government. In October 2010, Khadr accepted a plea deal in his trial by Military Commission at Guantánamo.
Book a ticket here, or phone 020 7679 4907, and see map here.

This final screening is followed, at 5.20 pm, by a panel discussion with Brent Mickum, the US lawyer for Guantánamo prisoners Shaker Aamer and Abu Zubaydah, and with Andy Worthington and Polly Nash, plus, subject to confirmation, Mat Whitecross and former Guantanamo prisoner Omar Deghayes.

This is how Dochouse describes “Exposing Guantánamo”:

How do you represent the inaccessible? Four films that use very different styles to address the continuing outrage that is Guantánamo. Guantánamo is the great open sore of western democracy — and one that, to our shame, still needs to be exposed to the fresh air of journalistic investigation and examination.

For further information about the film, for interviews, or to inquire about broadcasting, distributing or showing “Outside the Law: Stories from Guantánamo,” please contact Polly Nash or Andy Worthington, and please see below for the first five minutes of the film:

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

In the three years since that landmark case, Boumediene v. Bush, the prisoners’ initial success in the District Court in Washington DC., where they won 38 of the first 52 cases, has been abruptly halted, as right-wing judges in the D.C. Circuit Court, led by Senior Judge A. Raymond Randolph, have pushed back, insisting that little evidence is required to continue holding men indefinitely, even if, as in most cases, they were nothing more than insignificant foot soldiers for the Taliban, rather than international terrorists.

In response to this repeated hurling down of gauntlets by Judge Randolph, who is notorious for approving every piece of Guantánamo-related legislation that was subsequently overturned by the Supreme Court, there has been no repeat of Boumediene. In the last few months, lawyers for the prisoners have tried to undermine Judge Randolph and his colleagues on numerous fronts. Eight Guantánamo cases have made their way to the Supreme Court, as SCOTUSblog reported back in December, but all have failed.

Some of these cases have previously been discussed here. There are, for example, the poor Uighurs, innocent Muslims from China’s Xinjiang province, seized by mistake but trapped in Guantánamo because no one wants to allow them to be resettled in the US. Their attempt to secure justice in the courts finally came to an end last month, when the Supreme Court refused to consider their case, leading to an extraordinary and eloquent lament by one of their attorneys, Sabin Willett.

Before that, Judge Laurence H. Silberman, another aged right-winger, had wandered off on an extraordinary tangent about the perceived threat of terrorists in the case of a generally insignificant Yemeni, Yasein Esmail, who lost his appeal, and in March another generally insignificant Yemeni, Uthman Abdul Rahim Mohammed Uthman, whose habeas petition was granted in February 2010 by a judge who perceived that the government’s evidence consisted entirely of statements made by prisoners who had been tortured or whose testimony was officially regarded as unreliable, had his successful petition reversed. On that occasion, the culprits were a panel of judges that included another well-known right-winger, Judge Brett Kavanaugh, who declared, as ProPublica reported, “that the government doesn’t need direct evidence that a detainee fought for or was a member of al-Qaeda in order to justify a detention.”

The Supreme Court fails to tackle torture in the past

Over the last two weeks, the Supreme Court has cemented its reputation as a court that has turned its back on the lingering injustices of the Bush administration, which have, in addition, been endorsed and defended by President Obama. In the first instance, on May 16, the Court refused to grant a day in court to five victims of “extraordinary rendition,” who have been trying, since May 2007, to have a court hear their stories of how they were abducted and sent to be tortured in locations around the world with the help of Jeppesen Dataplan, Inc., a subsidiary of Boeing, which, it is clear, acted as the CIA’s travel agent for torture.

The five plaintiffs — who include the British residents Binyam Mohamed, rendered to torture in Morocco, and Bisher al-Rawi, kidnapped on business in the Gambia and rendered to the CIA’s “Dark Prison” in Afghanistan — won a crucial appeal in their case in March 2009, in the Ninth Circuit Court of Appeals, when the government’s attempt to protect itself (and its predecessors) from scrutiny by invoking the little known and little used “state secrets doctrine” was thwarted by a panel of three judges, who ruled that the executive branch’s claim that it was entitled to dismiss lawsuits merely by invoking the words “national security” would “effectively cordon off all secret actions from judicial scrutiny, immunizing the CIA and its partners from the demands and limits of the law.”

That ruling, however, was overturned last September, when a full panel of judges supported the government’s unprincipled use of the “state secrets doctrine.” As I explained at the time:

[W]hen asked to rule on whether these five men should have their day in court, or whether the government should be allowed to dismiss their lawsuit by claiming that the exposure of any information relating to “extraordinary rendition” and torture threatened the national security of the United States, American justice contemplated looking at itself squarely in the mirror, telling truth to power, and allowing these men the opportunity to address what had happened to them in a court of law, but, at the last minute, flinched and turned away. By six votes to five, the Court decided that, in the interests of national security, the men’s day in court would be denied.

In declining to review the men’s case, the Supreme Court has, as described in a strongly worded editorial in the New York Times, “abdicated [its] duty” and allowed “a major stain on American justice” to proceed unchecked.

The Times‘ editors did not mince their words. After noting that the abduction of “often innocent” foreigners, and their rendition to “countries well known for torturing prisoners” was “central to President George W. Bush’s antiterrorism policy,” and that he “then used wildly broad claims of state secrets to thwart any accountability for this immoral practice,” they added that “President Obama has adopted the same legal tactic of using the secrecy privilege to kill lawsuits,” and that therefore the only hope lay with the courts.

The editors’ verdict on the Supreme Court was harsh but completely justified. After noting first of all that the Ninth Circuit Court of Appeals “gave in to the pretzel logic shaped by the Bush administration that allowing the torture victims a chance to make their case in court using nonsecret evidence would risk divulging state secrets,” and that the Supreme Court has now “allowed that nonsense to stand,” the editors added:

By slamming its door on these victims without explanation, it removed the essential judicial block against the executive branch’s use of claims of secrecy to cover up misconduct that shocks the conscience. It has further diminished any hope of obtaining a definitive ruling that the government’s conduct was illegal — a vital step for repairing damage and preventing future abuses.

They also stated:

The Supreme Court should have grabbed the case and used it to rein in the distorted use of the state secrets privilege, a court-created doctrine meant to shield sensitive evidence in actions against the government, not to dismiss cases before evidence is produced.

In conclusion, the Times‘ editors pointed out that this was “not the first time the Supreme Court has abdicated its responsibility to hear cases involving national security questions of this sort,” lamenting that not even a single one of the justices was prepared to offer “a dissent or comment to let the world know that the court’s indifference was not unanimous,” either in the Jeppesen case, or, last year, in the case of Maher Arar, an innocent Canadian sent to Syria by George W. Bush to be tortured, or even, in 2007, in the case of Khaled El-Masri, a German citizen, seized by mistake, who was rendered to a torture prison in Afghanistan.

“What the world sees,” the editors added, “is rendition victims blocked from American courts while architects of their torment write books bragging about their role in this legal and moral travesty … The Supreme Court’s action ends an important legal case, but not President Obama’s duty to acknowledge what occurred, and to come up with ways to compensate torture victims and advance accountability.”

Unfortunately, as they also added, “It is hard, right now, to be optimistic.”

The Supreme Court fails to tackle torture in the future

In its second recent abdication of responsibility, the Supreme Court dismissed the last of the Guantánamo-related cases to come before them on May 23, with only two dissenters, Justice Stephen G. Breyer and Justice Sonia Sotomayor, prepared to consider Khadr v. Obama, a case named after Omar Khadr, but now, after Khadr accepted a plea deal last October, dealing solely with the question of whether the courts have any say in where Guantánamo prisoners are sent.

Related to Kiyemba v. Obama, the Uighurs’ case, which involved other questions regarding the courts’ ability to dictate where Guantánamo prisoners are — or are not — sent, the focus in Khadr was an attempt by prisoners to prevent the administration from forcibly repatriating them to countries where they fear the risk of torture. In defense of the administration, this has not often been an issue, although President Bush repatriated two Tunisians unwillingly, and Obama has done the same with two Algerians, but it remains a worry (as, for example, in the case of Ahmed Belbacha, an Algerian who is terrified of being repatriated), and it is, of course, disappointing that only two justices were prepared to consider the prisoners’ legitimate fears.

Instead, they have, once more, handed the decision making process to the D.C. Circuit Court, where judges, using a narrow reading of an Iraq detention case (Munaf v. Geren) decided on the same day as Boumediene, have ruled, as SCOTUSblog described it, that they have almost no power “to control the ultimate fate of Guantánamo detainees,” and that the prisoners themselves “have no other constitutional rights than a basic right to file a habeas challenge to their detention.” The Circuit Court also ruled that a 2005 federal immigration law “bars a Guantánamo detainee from making a claim in US court that a transfer to a given nation will violate a global treaty against torture.”

With this decision, as SCOTUSblog noted, “The chances that the Supreme Court will review the way lower courts have implemented its constitutional decision on the legal rights of detainees at Guantánamo Bay moved close to the vanishing point .” It was also noted, in what could almost be read as a sad epitaph for any hope that the law will ever lead to the closure of Guantánamo:

In terms of constitutional history, the Court’s sweeping declarations in the Boumediene decision, about the role of the judiciary in keeping the government from switching the Constitution on and off, now appear to have meant far less as a check on Executive power than they had seemed when that ruling came down in June 2008. And, while that decision might once have seemed to hold out the promise of ending the detention of many held at Guantánamo, it now appears to mean that some will remain at Guantánamo for years to come, and that facility will remain open indefinitely.

And that, in the end, is not something that the Supreme Court foresaw when the ruling in Boumediene was issued, and nor, furthermore, should it be something that the Court can now continue to ignore indefinitely.

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

As published exclusively on the website of the Future of Freedom Foundation, as “The Supreme Court’s Failure to Tackle Torture, Now and Forever.”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Those already tried are:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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