My apologies. I have been so busy with other projects that I have let my attention wander from Bagram in recent months, which is unwise when this particular prison — America’s largest prison in Afghanistan — is not only a legal black hole that makes Guantánamo look like a facility that is transparent and fair (it’s not, by the way, although civlian lawyers are allowed to visit, and prisoners nominally have habeas relief), but also the place where the Bush administration’s disregard for the Geneva Conventions has been most consistently apparent, and has not been reversed by President Obama.

Bagram occasionally attracts media attention because of the persistent stories about the “Tor prison,” a secret facility associated with the prison, where, according to those held there, “enhanced interrgation techniques” supposedly banned by President Obama — primarily involving isolation and sleep deprivation — are still used. This is bad, although it may be largely out of Obama’s control, in the hands of one of the shady organizations in America’s bloated security apparatus that effectively runs itself. This ought to be worrying in and of itself, but even if there are areas over which Obama has little control, he ought to be able to keep control of the main facility at Bagram — or, as it has been rebranded, Parwan, where up to 1,500 prisoners are held, and where the government recently made a point of showing off its new facility, boasting about ts transparency and the humane manner in which the prisoners are treated.

It certainly appears to be the case that, in general, America has belatedly worked out from Iraq that running prisons in a war zone humanely is more successful than treating everyone with brutality, especially given how random and chaotic the rounding up of prisoners has been throughout the “War on Terror.”

Despite this, Bagram — or Parwan — remains a showcase for what happened to the US military under Donald Rumsfeld in the “War on Terror,” when the Geneva Conventions were discarded, and prisoners were held for as long as the authorities saw fit, and, in addition, tortured when it was felt that they were not providing adequate “intelligence.”

Nominally, all this came to an end when Rumsfeld was replaced, under George W. Bush, with Robert Gates (who was then taken on by Obama, in the absense, presumably, of anyone in his team with a foot in the Pentagon’s door). In reality, however, although the Supreme Court insisted in June 2006, in Hamdan v. Rumsfeld, that everyone in US custody must be treated humanely, and, most crucially, that everyone is protected by Common Article 3 of the Geneva Conventions (which prevents “cruel treatment and torture” and “outrages upon personal dignity, in particular humiliating and degrading treatment.”), this successful overturning of one of the most despicable decisions undertaken by Bush (the executive order announcing that the Geneva Conventions did not apply in the “War on Terror,” which was issued on February 7, 2002) did not actually restore the Geneva Conventions to how the military operates.

At Bagram, for example, instead of holding prisoners unmolested until the end of hostilites (and holding Article 5 competent tribunals, close to the time and place of capture, to ascertain whether those not captured in uniform were combatants or civilians seized by mistake), the US authorities have been holding everyone for an unspecified amount of time before subjecting them to Detainee Review Boards, modeled on the Combatant Status Review Tribunals — used at Guantánamo to ascertain whether the prisoners had been correctly labeled as “enemy combatants” on capture, and  found  to be “inadequate” by the Supreme Court in Boumediene v. Bush, the 2008 case in which the prisoners were granted constitutionally guaranteed habeas corpus rights.

These habeas rights should have extended to foreign prisoners rendered to Bagram from other countries, as was decided by District Court Judge John D. Bates in March 2009, when he ruled on a number of habeas cases brought by foreign nationals seized in other counries and rendered to Bagram from 2002 onwards. Judge Bates correctly ruled that their circumstances — though not the circumstances of any of the Afghan prisoners, even those who were also seized in other countries — were comparable to the Guantánamo prisoners, and that therefore they should have the same rights, but his ruling was overturned by the D.C. Circuit Court last May, as I explained in an article entitled, The Black Hole of Bagram.

This was a great shame — and it remains one of many black marks against the Obama administration, indicative of the general manner in which, when decisive action has been needed to overturn and thoroughly repudiate the novel exceesses of the Bush administration, President Obama has shown himself to be sadly lacking in fulfilling the promise of change that he spoke about so eloquently as a Senator and on the campaign trail.

In a separate article, I’ll be pulling together three reports filed from Bagram in February, which, in particular, examine how the Detainee Review Boards — which are, admittedly, an improvement on the scandalously poor review process that existed at Bagram under Bush — have been progressing, but in the meantime I thought that readers might also be interested to know about what I did yesterday.

Alerted by a friend to the existence of FOIA documents about Bagram obtained by the ACLU, which I had not yet examined, I spent yesterday updating the first definitive Bagram prisoner list that the ACLU obtained last January. When that list was issued it was the first time that the US government had released any information about who was held at Bagram, and I examined its significance in two articles entitled, Dark Revelations in the Bagram Prisoner List and Bagram: Graveyard of the Geneva Conventions.

At the time, there was no information about who the 645 prisoners listed were, or what had happened to them since the list was compiled in September 2009, so as a result I researched the names of the 645, creating what I described as Bagram: The Annotated Prisoner List (A Cooperative Project), and yesterday I cross-referenced this list with the documents obtained by the ACLU, adding the results of around 100 Detainee Review Boards, and also adding around 100 new cases — with internment numbers, but not with names, sadly — of prisoners seized since the master list was compiled in September 2009.

These are fascinating, in that they help to shed light on what has happened to the prisoners, and how long it has taken for them to receive something resembling justice, although it remains a disturbing process, as the information confirms America’s flight from the Geneva Conventions, and also explains how chaotic detention policies are when there is not only an American system that has evolved based on the presumed need for intelligence, rather than the requirements of the Geneva Conventions, but also when another detaining authority is involved — in this case, of course, the Afghan government, which has been installed since November 2004, but still shares power uneasily with its American occupier.

All of these complications are laid out clearly in the documents, as the US review boards ascertain whether to release prisoners, whether to continue holding them, or whether to transfer them to Afghan custody for criminal prosecution or to be included in a process of reconciliation and rehabilitation. In the documents, these are often referred to as being proposed for the consideration of the Aloko Commission, named after Afghan Attorney General Mohammad Ishaq Aloko, and the Americans’ perceived problems with the Commission were revealed in one of the US diplomatic cables leaked to WikiLeaks, which was made available last December.

There’s much more to be done in adding information to the master list from the documents obtained by the ACLU, as I have only, to date, analyzed and transferred information from Set 1 of the 7 Sets listed under “10/11/2010 – Commander’s Final Decision Memos” and have not yet added imformation from other important documents at “10/29/2010 – More complete documents relating to an illustrative sample of 60 DRB hearings,” which I’m currently writing about in a series of three articles for Cageprisoners, and together with some cross-posted articles from elsewhere, shedding more light on the prison, the treatment of prisoners, the detention policies, and the review process, I have, I think, enough to declare that this week is “Bagram Week” at Andy Worthington.

If anyone wants to help with this project by undertaking an analysis of Sets 2 to 7 of the Final Decision Memos, then please let me know, and we can work out how to proceed.

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.

“For nearly a decade,” the article explained, “the US has conducted a major cloak-and-missile campaign against al-Qaeda, teaming up with friendly Arab leaders to swap intelligence, interrogate suspects, train commandos or carry out military strikes from Morocco to Iraq … Now popular movements sweeping the region have knocked some counterterrorism allies from power, and left others too distracted or politically vulnerable to risk open cooperation with the US. Intelligence-sharing has already slowed in some areas as the US struggles to identify reliable counterparts in reshuffled governments.”

One official said, “It’s difficult to share information when you don’t know who the players are.”

The article also claimed, “The upheaval has upended US foreign policy in the region, with old friends shaken or gone and the allegiance of emerging leaders uncertain. The effects on counterterrorism efforts are one of the aftershocks that worry the intelligence community the most.”

Barnes and Embus also quoted government officials as telling them that they had “lost track of many former Guantánamo detainees who had been sent home to the Middle East and North Africa,” and that losing track of these former prisoners was “a sign that unrest in the region is disrupting critical terror-fighting relationships America has built up since the Sept. 11 attacks.”

Why US intelligence officials’ statements to the Wall Street Journal are disturbing

There were problems with these claims that neither journalist picked up; namely, that the claim about “losing track” of former prisoners is, to put it bluntly, a lie, and also that the revolutionary “unrest” that has toppled the regimes of Zine El-Abidine Ben Ali in Tunisia and Hosni Mubarak in Egypt can legitimately be viewed not as “disrupting” what US intelligence agencies regard as “critical terror-fighting relationships” but as hugely popular revolutionary movements that have removed from power two hated dictators whose oppression of their people was only possible because they were backed by the US and by other Western countries.

For these home-grown revolutionary movements, the description of their hated dictators as “friendly Arab leaders,” with whom the United States was cosily involved in “swap[ping] intelligence” and “interrogat[ing] suspects,” will, if widely disseminated in the region, only reinforce the notion that America cannot be trusted. This is because one of the drivers of the revolutionary movement in Egypt was a thorough disgust at how the government’s “emergency powers,” enforced continually throughout Mubarak’s 30 years in power, underpinned an essentially unaccountable regime of torture prisons run by the state security services, and secretive courts handing down punitive sentences and laundering information derived through the use of torture, without anything resembling due process. Similar complaints also drove the Tunisian uprising, which lit the spark of revolution throughout the Middle East in the first place.

The tension between America’s perceived security needs and the desires of the people of the Middle East was clearly recognized in the Wall Street Journal article, which noted, “Publicly, the Obama administration has embraced the democratic tide, arguing that political freedoms will diminish the standing of al-Qaeda in the Middle East and beyond,” and quoting defense secretary Robert Gates stating that “the pro-democracy protests ‘give the lie’ to al-Qaeda’s message that change is possible only through violence,” and that they “are an extraordinary setback for al-Qaeda.”

This ought to be the key message that America takes from the upheavals sweeping the Middle East, although the Wall Street Journal also noted, “Privately, counterterrorism officials in the US and Europe are watching the sweeping changes with a mixture of alarm and dread,” worried about Yemen, long regarded as a dangerously unstable nation, and also “worried that the level of cooperation from security services in Tunisia and Egypt, longtime partners, will decline as new leaders distance themselves from past abuses.”

It should also be noted that, when Robert Gates referred to the pro-democracy movements giving the lie to al-Qaeda’s message that “change is only possible through violence,” he ought to have reflected that the same message should apply equally to the US. Such an epiphany seems unlikely, but although this places America in an unusual position with regard to the bigger picture of the upheavals in the region — largely confined to watching as people’s movements take the initiative themselves — on other details, such as claims about the value of America’s relationship with regimes notorious for their use of torture, and the significance of prisoners released from Guantánamo, it is more than possible to refute claims that seek to suggest that the crimes, mistakes and distortions of the Bush administration’s “War on Terror” are in any way justified.

Why there is no threat from former Guantánamo prisoners in Egypt or Tunisia

In the first instance, to thoroughly undermine the claim that the US government is “losing track” of former prisoners — and to demonstrate that this encounter between the Wall Street Journal and US intelligence was therefore something of a propaganda construct — it is only necessary to consider that, in the only countries where “unrest” has toppled dictators — Tunisia and Egypt — only four former Guantánamo prisoners have been released, and none of them are even remotely involved in anything to do with terrorism.

In Egypt, one of the two men is Sami El-Laithi (aka El-Leithi, and spelled Allaithy by the US authorities). Now 55 years old, he had been teaching at the University of Kabul when the US-led invasion of Afghanistan began in October 2001, and, like many hundreds of others, he was seized and sent to Guantánamo after escaping to Pakistan. Unlike any other Guantánamo prisoner, however, El-Laithi was so brutally set upon by guards in Guantánamo one evening that they broke his spine, and he has been confined to a wheelchair ever since. Returned to Egypt on October 1, 2005, he was then held by Egypt’s state security agency at a special prison section in Cairo’s El-Qasr Al-Eini Hospital, and has stated his belief that, had he not been physically handicapped, he would not have been released. Now largely confined to his home village, outside Cairo, he is neither a threat nor an unknown quantity.

Had El-Laithi not been crippled, his thoughts about how he would not have been released from Egyptian custody reflect what happened to Reda Fadel El-Weleli (identified in Guantánamo as Fael Roda Al-Waleeli), the first Egyptian transferred from Guantánamo to Egypt, who arrived in Cairo on July 1, 2003, and subsequently disappeared. In October 2009, Martin Scheinin, the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, complained that, after a visit to Egypt in April 2009, he “regrets that the Government of Egypt did not reply to his questions on the fate of … El-Weleli,” although I was later told that UN representatives finally succeeded in tracking him down, and that he was a broken figure, and very obviously a threat to nobody, who explained that, after his return from Guantánamo, he had been held and tortured in a secret prison in Egypt for three and a half years.

In Tunisia, the US government also knows the whereabouts of the two men it transferred to Tunisian custody in June 2007, who, it should be noted, had been cleared for release by a military review board convened under President Bush. Until very recently, both were in prison, having been imprisoned after show trials on their return, despite the signing of a “diplomatic assurance” between the US government and President Ben Ali, which purported to guarantee that they would be treated fairly when repatriated.

One of the two, Lotfi Lagha, was freed after his three-year sentence came to an end last year, and the other, Abdallah Hajji, was freed in February this year after the flight of Ben Ali. The eight-year sentence he had been given in 2007 was overturned, amidst the recognition that he had never been involved in any kind of terrorism, and was, instead, a member of Ennahdha, the Islamic opposition group, banned by Ben Ali, whose members were conveniently labeled as terrorists during the “War on Terror.” Both men can easily be found in Tunisia, as a former exiled political opponent of the regime, Fathi Messaoudi, explained to me when I met him a few days ago.

Having recently returned to Tunisia for the first time in 20 years, Messaoudi, a charismatic blind man who was regarded as such a threat by Ben Ali that he had been given a 75-year prison sentence by the former regime, told me that he met Abdallah Hajji and that, although he relished his freedom, he too was a broken man, and had been haunted, since his imprisonment on his return to Tunisia, by threats that his wife and daughters would be brought before him by the secret police and raped.

Why America’s intelligence services still love arbitrary detention and torture

In addition, another intention regarding the US claims about former prisoners in Tunisia and Egypt appears to be to cast doubts on the security of both countries following their popular revolutions and the flight of their dictators. This, too, is groundless, and is nothing more than scaremongering, because, although there are policing problems in Tunisia, the country is ruled by an interim government that consists primarily of Ben Ali’s former colleagues (in other words, America’s long-standing allies in the region). Similarly, in Egypt, the interim government — the Supreme Council of the Armed Forces — consists of Mubarak’s former colleagues, even though, in the end, the army’s senior generals chose to seize power themselves rather than entrusting it to Hosni Mubarak’s chosen successor, Omar Suleiman.

As was noted before Mubarak’s fall, if there was to be meaningful change in Egypt, it could not involve Suleiman, the former spy chief who not only symbolized the brutality of Egypt’s police state to its own citizens, but was also central to the key role played by Egypt as a partner in the Bush administration’s “War on Terror,” personally overseeing the brutal torture of terror suspects seized by the CIA, including the Australian Mamdouh Habib, the Pakistani scholar Mohammed Saad Iqbal Madni, and the Libyan Ibn al-Shaykh al-Libi, the emir of a training camp in Afghanistan. Under torture — almost certainly at Suleiman’s hands — al-Libi falsely confessed that Saddam Hussein had met two al-Qaeda operatives to discuss obtaining chemical and biological weapons, a tortured lie that, although retracted by al-Libi (who was later returned to Libya and a suspicious death by “suicide” in 2009), was used by the Bush administration to justify its illegal invasion of Iraq in March 2003, when Secretary of State Colin Powell was persuaded to use it in a key presentation to the United Nations the month before.

Even so, positive perceptions of Omar Suleiman and Hosni Mubarak are at the heart of the US intelligence officials’ complaints about the changing political landscape in the Middle East. “Obviously, our most important relationship over the last decade has been Egypt,” a senior US intelligence official told the Wall Street Journal. “And clearly that is in line for significant change. We won’t re-create the relationship we had with Mubarak.”

Examining the importance of that relationship, the article proceeded to mention — with obvious approval — how, “Before this year’s revolts, the secret police in authoritarian countries like Egypt and Tunisia had far more leeway than the US and its European allies to hold detainees indefinitely and use interrogation methods widely regarded by human-rights groups as torture to try to extract information,” and that the Egyptian government also “secretly held and interrogated Islamist militants who had been captured by the CIA and the US military under a practice known as rendition, widely condemned by human-rights groups.”

Remove the careful caveats from the sentences above, and what you have is a clear statement that the US and at least some of its Western allies enjoyed the fact that, under Hosni Mubarak, prisoners could be kidnapped anywhere in the world and rendered to Egypt, where they could be detained indefinitely and tortured — and it is, to be honest, rather disturbing to be hearing US officials stating so openly, in 2011, how they wish that torture was still something they could use.

Why there is no threat from former Guantánamo prisoners in Libya or Yemen

With the US intelligence services’ love of torture exposed, and the misinformation about former prisoners in Tunisia and Egypt debunked, it is clear that the central premises of the Wall Street Journal article — that former Guantánamo prisoners, unmonitored, are on the loose in the Middle East, and that the governments responsible for monitoring them have either been toppled or are too distracted by their own revolutionary movements — do not stand up to any kind of scrutiny.

Moreover, looking at countries other than Tunisia and Egypt, similar problems can be perceived. The article, for example, also specifically mentioned Libya and Yemen. “The flow of information from Libya, Yemen and other governments in the region about the whereabouts and activities of the former Guantánamo detainees, along with other Islamists released from local prisons, has slowed or even stopped,” officials told the Wall Street Journal, adding that “they fear that former detainees will re-join al-Qaeda and other Islamist groups.”

Again, on close inspection, what is portrayed as a problem engendered by the revolutionary movements spreading across the Middle East, and also as one on a significant scale, is easily dismissed when the facts are introduced. In Libya, for example, where, rather terrifyingly, the counterterrorism relationship between the US and Gaddafi, another blatant torturer, was described by a senior US official as “especially productive,” only two former Guantánamo prisoners have been released, and as I explained in a recent article, “Deranged Gaddafi Blames Ex-Guantánamo Prisoners for Unrest in Libya, Even Though Only One Ex-Prisoner Has Been Released,” one of these men is still imprisoned in Tripoli, and the other, freed last summer, is verifiably not involved in any al-Qaeda activities. Nor, outside of wild claims by Colonel Gaddafi, has there been any serious suggestion that al-Qaeda, as such, is involved in the Libyan people’s uprising against their hated dictator, which, as elsewhere, is led primarily by young people rather than religious organizations, and supported by trade unionists and intellectuals.

With this in mind, it is noticeable that the Wall Street Journal‘s commentary on the Guantánamo prisoners repatriated to Libya was nothing more than a succession of errors. “In Libya, the US has been completely cut off,” the article claimed, citing an Obama administration official stating, “It’s dead with Gaddafi. We don’t know the status of the people [the returned prisoners].” The article then falsely claimed that both men had been returned in 2006, when one was returned in October 2007, and although it was correctly stated that, since their return, “US officials have paid multiple visits to the men in Libyan prisons,” it was, again, mistaken to suggest that, “once the uprising in Libya boiled over into a full-blown rebellion and the US called for Col. Moammar Gaddafi to step down, American officials lost track of the two men,” because, as indicated above, one remains in prison, and the other can easily be traced, and is very clearly no threat to anyone — as the Americans realized when they released him in 2007.

Similarly, in Yemen, the explicit claims made in the article that “US and European officials are increasingly concerned that former Guantánamo detainees are no longer under much, if any, government surveillance” is, fundamentally, nothing more than unjustifiable scaremongering. The authorities may well be concerned because they have, according to the article, “detected an uptick in activity by al-Qaeda in the Arabian Peninsula,” with a senior counterterrorism official claiming that “the group is ‘very actively’ plotting new strikes against the US during the lull in American and Yemeni counterterrorism operations” caused by the revolutionary upheavals in Yemen in the last two months.

However, this has nothing to do with the prisoners released from Guantánamo. According to US intelligence, a handful of Saudi ex-prisoners released by President Bush have been involved in al-Qaeda in the Arabian Peninsula, but only one Yemeni ex-prisoner — Hani Abdo Shaalan (aka Hani Abdu Shu’alan), released in June 2007 and apparently killed by Yemeni security forces in December 2009.

To get the Yemeni story in perspective, only 23 Yemeni prisoners have ever been released from Guantánamo, and in the last 15 months, just one Yemeni — Mohammed Hassan Odaini, a student seized by mistake while visiting other students in a university dormitory in Pakistan, who won his habeas corpus petition — has been freed.

Of the other 89 Yemenis still held in Guantánamo, 58 were cleared for release by President Obama’s interagency Guantánamo Review Task Force, which reviewed all the Guantánamo cases throughout 2009, but they are still held because of an ongoing and open-ended moratorium on releasing any Yemenis, which was announced by President Obama in January 2010, after it was claimed that the failed plane bomber on Christmas Day 2009, the Nigerian Umar Farouk Abdulmutallab, had been recruited in Yemen.

Of the prisoners returned to Yemen, it is not actually difficult to establish that the overwhelming majority of them can be located easily, and are trying, with varying degrees of success, to rebuild their shattered lives. I recently, for example, spoke to David Remes, the attorney for several of the released prisoners, who told me about his recent meetings with them on a visit to Yemen, and updated me about their working lives, their hopes and aspirations, and their families.

Behind the headline-grabbing fears, this is the norm for Yemenis returned from Guantánamo, and the biggest problem Yemen causes to the US, when it comes to Guantánamo, is not those who have been released, but those who have not, because clearing men for release, and then not releasing them because of the perceived threat of terrorism from Yemen in general, tars the entire Yemeni population as terrorist sympathizers, and is, essentially, “guilt by nationality,” which is a deep insult to the Yemeni people, and a guaranteed basis for ill-feeling. In addition, as I have been explaining all year, it makes those held into political prisoners, no longer held because of any just or judicial process, but because of the whims of an unaccountable government.

If the US should draw one obvious lesson from what is happening throughout the Middle East, it ought to be that it is time for the paranoia and state-sanctioned violence of the “War on Terror” to be brought to an end. After all, Islamist militants have been conspicuously absent during the upheavals, which have been led primarily by young people, and the Islamic groups who have appeared have shown themselves willing to take part in the democratic process.

Nearly ten years after the 9/11 attacks, there is now an historic opportunity for the US to recognize that it is time to move on from a decade dominated by the lawlessness and brutality of al-Qaeda, and the lawlessness and brutality with which America responded, and to learn a lesson from the revolutionaries of the Middle East — that living in hope is far better than living in fear.

POSTSCRIPT April 3: A misleading article in the Wall Street Journal has focused on the role played in the resistance to Gaddafi by former opponents with alleged ties to al-Qaeda; specifically, Sufyan Ben Qumu (aka Abu Sufian Hamouda or Abu Sufian bin Qumu), the former Guantánamo prisoner who was freed from Libyan custody last year, after returning to Libya in 2007 and being subsequently imprisoned. Described by the Wall Street Journal as “training many of the city’s rebel recruits [in Darna],” which may be true, but sounds like an attempt to beef up a suggestion that he has volunteered to join the resistance to Gaddafi, it was also claimed that he was a “Libyan army veteran who worked for Osama bin Laden’s holding company in Sudan and later for an al Qaeda-linked charity in Afghanistan,” whereas, as I explained in a recent article:

[H]e had served in the Libyan army as a tank driver from 1979 to 1990, but was “arrested and jailed on multiple occasions for drug and alcohol offenses.” Having apparently escaped from prison in 1992, he fled to Sudan, where he worked as a truck driver. In an attempt to beef up the evidence against him, the Department of Defense alleged that the company he worked for, the Wadi al-Aqiq company, was “owned by Osama bin Laden,” and also attempted to claim that he joined the Libyan Islamic Fighting Group … even while admitting that an unidentified “al-Qaeda/LIFG facilitator” had described him as “a noncommittal LIFG member who received no training.”

After relocating to Pakistan, [he] apparently stayed there until the summer of 2001, when he and a friend crossed the border into Afghanistan, traveling to Jalalabad and then to Kabul, where [he] found a job working as an accountant for Abdul Aziz al-Matrafi, the director of al-Wafa, a Saudi charity which provided humanitarian aid to Afghans, but which was regarded by the US authorities as a front for al-Qaeda … while working for al-Wafa, he traveled to Kunduz “to oversee the distribution of rice that was being guarded by four to five armed guards.” In Guantánamo, it seems, even the distribution of rice can be regarded as a component in a military operation.

Please note that no evidence was ever produced to establish that al-Wafa was “an al-Qaeda linked charity,” as the Wall Street Journal suggested so casually, and everyone connected with the organization, including al-Matrafi, was released from Guantánamo.

Fathi Messaoudi, the Tunisian dissident mentioned above, also told me that I was incorrect in describing Abdallah Hajji, the former Guantánamo prisoner freed in Tunisia following Ben Ali’s fall (after serving over three years of a sentence he was given after a show trial on his return in 2007), as a member of Ennahdha, even though that has been reported widely for many years. According to Messaoudi, Ennahdha members sought refuge in European countries, and none of them traveled to Afghanistan or Pakistan like other opponents of the regime.

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.

Those who fit this category in particular are the 89 prisoners cleared for release by President Obama’s Guantánamo Review Task Force, a sober collection of career officials and lawyers from government departments and the intelligence services, who reviewed all the Guantánamo cases throughout 2009, and concluded that 28 Yemenis should be released — and that another 30 should be released when the security situation in Yemen improves. This latter category of prisoner — held in what the Task Force described as “conditional detention” — were particularly unfortunate, as “conditional detention” is clearly one of those disturbing novelities invented in post-9/11 America, which, to all intents and purposes, may well mean, in reality, that they will be held indefinitely.

However, for the other 28 Yemenis, there appeared to be no obstacle to their release until, on Christmas Day 2009, Umar Farouk Abdulmutallab, a Nigerian, tried to blow up a plane bound for Detroit. When it emerged that Abdulmutallab had apparently been recruited in Yemen, the backlash in the US against releasing any Yemenis was so ferocious that President Obama immediately caved in to the criticism, announcing an open-ended moratorium on releasing any Yemenis, even though, by doing so, he was consigning them to “guilt by nationality,” and was sending a message to the Yemeni people that they were all regarded as terrorists or terrorist sympathizers.

With one exception — Mohammed Hassan Odaini, a patently innocent man who won his habeas corpus petition last May, and was released in July — the administration has refused to break its moratorium, providing additional safeguards to ensure that no Yemenis are released by appealing every successful habeas corpus petition (except that of Mohammed Hassan Odaini), including that of one particularly unfortunate individual, Adnan Farhan Abdul Latif.

Latif, who was cleared for release from Guantánamo by a military review board in 2007, under the Bush administration, and has verifiable mental health problems, possibly including schizoprehia, which have led to him attempting suicide on several occasions, was nevertheless required to wait another three years in the prison until, on July 21 last year, Judge Henry H. Kennedy Jr. granted his habeas petition, evidently believing his story that he had traveled to Pakistan, and then Afghanistan in search of cheap medical treatment for the injuries he suffered in a car crash — the pre-existing condition that has been so ruinously exacerbated after nine years of abuse in Guantánamo. Even then, however, his suffering did not come to an end, as the Obama administration refused to release him, and, instead, appealed his successful petition.

His lawyers’ submission on his behalf can be found here (PDF), and it is, I believe, a savage indictment of the administration’s politically motivated cowardice — and of the indifference of the US media and the American public — that no pressure has been exerted to secure his release, as his case presents the most obvious example of the Yemenis cleared for release whose continued presence at Guantánamo is dictated solely by politics of the most cynical kind.

I have previously published two letters sent by Latif from Guantánamo to one of his lawyers, David Remes, in my articles, Guantánamo Is “A Piece of Hell That Kills Everything”: A Bleak New Year Message from Yemeni Prisoner Adnan Farhan Abdul Latif and A Cry for Help from Guantánamo: Adnan Latif Asks, “Who Is Going to Rescue Me From the Injustice and the Torture I Am Enduring?” and David recently sent me a third letter, written on December 26, 2010, which I am reproducing below in the hope that it will keep Adnan’s plight in people’s minds, and will encourage readers to consider that a campaign to put pressure on the United States to honour its commitments to free prisoners cleared for release is necessary if the Obama administration is to avoid complaints that it is engaged in arbitrary detention, mocking its own procedures by holding men cleared for release, insulting the people of Yemen, and presiding over a system that is no longer holding men based on any spurious notion of justice, but is, instead, holding them as political prisoners.

A letter from Guantánamo by Adnan Farhan Abdul Latif, December 26, 2010

David Remes,

Do whatever you wish to do, the issue is over.

I am happy to express from this darkness and draw a true picture of the condition in which I exist. I am moving towards a dark cave and a dark life in the shadow of a dark prison. This is a prison that does not know humanity, and does not know [anything] except the language of power, oppression and humiliation for whoever enters it. It does not differentiate between a criminal and the innocent, and between the right of the sick or the elderly who is weak and is unable to bear and a man who is still bearing all this from the prison administration that is evil in mercy.

Hardship is the only language that is used here. Anybody who is able to die will be able to achieve happiness for himself, he has no other hope except that. The requirement is to announce the end, and challenge the self love for life and the soul that insists to end it all and leave this life which is no longer anymore called a life, instead it itself has become death and renewable torture. Ending it is a mercy and happiness for this soul.

I will not allow any more of this and I will end it. I will send [move] it to a world that is much better than this world. There, the real life will live again that will be filled with complete happiness and be rid of all harassments. There, the environment will clear up, things will calm down and you will be able to relax and you will not see the world of evil people.

I am in need of a person who blindfolds his eyes from me [looks the other way] and leaves me in my freedom so that I can choose my end. With all my pains, I say goodbye to you and the cry of death should be enough for you.

A world power failed to safeguard peace and human rights and from saving me. I will do whatever I am able to do to rid myself of the imposed death on me at any moment of this prison.

156

12/26/2010

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 Cageprisoners.

1.

Since its founding in December 2006, WikiLeaks, which was established as, essentially, a secure information clearing house for whistleblowers around the world to provide sensitive information, some of which would then be released to the public, and which was reportedly set up by “Chinese dissidents, journalists, mathematicians and start-up company technologists, from the US, Taiwan, Europe, Australia and South Africa,” has declared that its “primary interest is in exposing oppressive regimes in Asia, the former Soviet bloc, Sub-Saharan Africa and the Middle East, but we also expect to be of assistance to people of all regions who wish to reveal unethical behaviour in their governments and corporations.” From the release of a single document in December 2006 — a “secret decision,” signed by Sheikh Hassan Dahir Aweys, a Somali rebel leader for the Islamic Courts Union, which “had been culled from traffic passing through the Tor network to China,” and which “called for the execution of government officials by hiring ‘criminals’ as hit men” — WikiLeaks has received millions of documents, and has, amongst other achievements, exposed corruption in Kenya, made available the Standard Operating Procedure for Guantánamo from 2003 and 2004 (and compared the changes), attacked Scientology, exposed Sarah Palin’s emails, and published a membership list of Britain’s far-right BNP.

In the last eight months, however, since WikiLeaks began focusing on major stories involving the United States, there are concerns that Julian Assange the figurehead has been taking over from WikiLeaks the organization in perceived importance, and that both are overshadowing the importance of the whistleblower who leaked the information in the first place — by many accounts, Bradley Manning, a 23-year old junior US army intelligence analyst. who is facing a court martial and a 52-year prison sentence for leaking the 251,287 US diplomatic cables that are currently being published, as well as the army field reports from Afghanistan and Iraq (released in July and October), and “Collateral Murder“, the 39-minute video showing an Apache helicopter gunning down a group of armed men, civilians and two Reuters journalists in Baghdad, whch was released in April, and which started the global focus on WikiLeaks as the foremost exposer of American secrets.

As Raffi Khatchadourian of the New Yorker explained in an article in June this year, the leaked video “was digitally encrypted, and it took WikiLeaks three months to crack.” Assange told Khatchadourian that unlocking the file was “moderately difficult.” Bradley, increasingly overlooked in media reports, may not have a company philosophy like WikiLeaks, but it is important that he is not forgotten, and it is also important to recognize his own reasons for embarking on the biggest leak of secrets in US history. “God knows what happens now,” Manning apparently wrote after the release of the “Collateral Damage” video. “Hopefully worldwide discussion, debates, and reforms. If not … then we’re doomed as a species. I will officially give up on the society we have if nothing happens.” He also wrote, “I want people to see the truth regardless of who they are because without information, you cannot make informed decisions as a public.”

Assange must certainly be credited for his work on encryption. Khatchadourian called him “a cryptographer of exceptional skill,” his “near-genius IQ” has been noted on many occasions, and this has played an enormously significant role in preventing WikiLeaks’ security from being breached. In the New Yorker article, Khatchadourian also explained how WikiLeaks’ security works:

The entire pipeline, along with the submissions moving through it, is encrypted, and the traffic is kept anonymous by means of a modified version of the Tor network [one of the inspirations for WikiLeaks, in which Assange was involved, which dealt with millions of secret transmissions], which sends Internet traffic through “virtual tunnels” that are extremely private. Moreover, at any given time WikiLeaks computers are feeding hundreds of thousands of fake submissions through these tunnels, obscuring the real documents. Assange told me that there are still vulnerabilities, but “this is vastly more secure than any banking network.”

However, troubling stories about Assange’s leadership style were circulating in summer, before the “Cablegate” revelations, with complaints by former employees about “what they see as erratic and imperious behavior, and a nearly delusional grandeur unmatched by an awareness that the digital secrets he reveals can have a price in flesh and blood,” as the New York Times explained in an article in October. The Times “spoke with dozens of people who have worked with and supported him in Iceland, Sweden, Germany, Britain and the United States. What emerged was a picture of the founder of WikiLeaks as its prime innovator and charismatic force but as someone whose growing celebrity has been matched by an increasingly dictatorial, eccentric and capricious style.” Smari McCarthy, an Icelandic volunteer, said that “‘About a dozen’ disillusioned volunteers [had] left recently,” and over the summer, Assange also “suspended Daniel Domscheit-Berg, a German who had been the WikiLeaks spokesman under the pseudonym Daniel Schmitt, accusing him of unspecified ‘bad behavior.’”

2.

Reinforcing this notion of imperiousness, WikiLeaks made a grave error in summer, when the Afghan war logs were published, in not redacting the names of Afghans who may have suffered reprisals because of it. As the New York Times reported, “Several WikiLeaks colleagues say [Assange] alone decided to release the Afghan documents without removing the names of Afghan intelligence sources for NATO troops.” Birgitta Jonsdottir, a core WikiLeaks volunteer and a member of Iceland’s Parliament said, “We were very, very upset with that, and with the way he spoke about it afterwards. If he could just focus on the important things he does, it would be better.” As Shiraz Socialist pointed out in a recent post, the following exchange took place in July, when Carole Cadwalladr of the Observer interviewed Assange, who was furious that the (London) Times had falsely accused him of contributing to the death of a man who had, in fact, died two years earlier:

What about these named sources? Might he have endangered their lives?

“If there are innocent Afghans being revealed, which was our concern, which was why we kept back 15,000 files, then of course we take that seriously.”

But what if it’s too late?

“Well, we will review our procedures.”

Too late for the individuals, I say. Dead.

3.

In trying to make sense of the latest releases — the 251,287 US diplomatic cables, of which just 1,344 had been released by December 12 — it is important to note a distinct difference between the release of the cables and the previous releases relating to the wars in Iraq and Afghanistan, which can be seen as performing an important anti-war function, exposing intimate, day-to-day details of wars that are widely regarded as illegal and/or futile. While it has been, and will continue to be fascinating to have behind-the-scenes diplomatic maneuvering, frank opinions about world leaders, and verbatim transcripts of these leaders’ own opinions exposed to public consumption, as well as a number of genuinely important stories — including, from my perspective, revelations that the Bush administration put pressure on Germany not to investigate US torture, and that Obama then did the same with Spain — the motives overall are not so clear-cut.

Assange’s motives, as described in an article in the Independent in summer, can be found in a document he wrote in 2006, entitled, “Conspiracy as Governance” (PDF), which “detailed how leaks could be an instrument for breaking down unrepresentative government that thrived on keeping information secret.” Others have discussed his anarchism. Following a BBC Newsnight broadcast last week, examining his personal blogs, the British anarchist Ian Bone wrote, “Assange quotes frequently from German anarchist Gustav Landauer and shares some of his thinking. Assange believes by exposing the hypocrosies of governments that faith in government will decline and individuals will take on more personal responsibilities for their lives which will in turn see the state row back on its own role. Not my kind of anarchism but anarchism nevertheless. Anarchists have tried to bring down governments but Assange is trying to bring down the lot at once!”

However, two additional factors also need to be taken into consideration when considering the release of the cables.

4.

The first of these is a US problem involving classification and accessibility. Ironically, had the US intelligence agencies not failed so spectacularly to communicate with one another before the 9/11 attacks, those terrorist attacks might have been thwarted. In response, the database pillaged so easily by Bradley Manning (or whoever leaked the documents, if not Manning) was established, and, although “top secret” information presumably remains as compartmentalized as ever, opened up all other information (including “secret” information) to a ludicrous extent, with the information that was leaked available to three million government employees — something that all but the most deluded officials would surely have concluded was a disaster waiting to happen. All that was required, as we have seen, was a disgruntled employee with a CD disguised as a Lady Gaga album.

5.

The second factor is that, unlike with the war logs, which Assange shared with a number of media partners — the Guardian, Der Spiegel and the New York Times — the “Cablegate” releases have been coordinated much more closely with these media partners (now including Le Monde and El Pais) than previously, to the extent that it is the media partners who appear to have been dictating what is released, and when, and WikiLeaks has followed, as the Associated Press explained in an article on December 3. This is worth reading in its entirety, and it includes a reference to New York Times Executive Editor Bill Keller telling readers in an online exchange that the Times “has suggested to its media partners and to WikiLeaks what information it believes should be withheld.” Keller wrote, “We agree wholeheartedly that transparency is not an absolute good. Freedom of the press includes freedom not to publish, and that is a freedom we exercise with some regularity.”

Assange himself admitted as much in a Q&A session on the Guardian‘s website, when he wrote, “The cables we have release[d] correspond to stories released by our mainstream media partners and ourselves. They have been redacted by the journalists working on the stories, as these people must know the material well in order to write about it. The redactions are then reviewed by at least one other journalist or editor, and we review samples supplied by the other organisations to make sure the process is working.”

In addition, as Scott Shane explained in an article for the New York Times on Saturday:

[E]ven as the government seeks to rein in WikiLeaks, WikiLeaks is reining in itself. The confidential diplomatic cables it disclosed have unquestionably turned the discreet world of diplomacy upside down. But the disclosures have been far more modest than WikiLeaks’ self-proclaimed dedication to total transparency might suggest.

Had it chosen to do so, WikiLeaks could have posted on the Web all 251,287 confidential diplomatic cables about six months ago, when the group obtained them. Instead, it shared the cables with traditional news organizations and has coordinated the cables’ release with them. As of Friday, fewer than 1 percent of the cables had been released on the Web by the antisecrecy group, The Times and four European publications combined.

“They’ve actually embraced” the mainstream media, “which they used to treat as a cuss word,” [Thomas S. Blanton, director of the National Security Archive at George Washington University,] said. “I’m watching WikiLeaks grow up. What they’re doing with these diplomatic documents so far is very responsible.”

When the newspapers have redacted cables to protect diplomats’ sources, WikiLeaks has generally been careful to follow suit. Its volunteers now accept that not all government secrets are illegitimate; for example, revealing the identities of Chinese dissidents, Russian journalists or Iranian activists who had talked to American diplomats might subject them to prison or worse.

In an op-ed essay for The Australian last week, Mr. Assange … declared his devotion to some core Western press values. “Democratic societies need a strong media and WikiLeaks is part of that media,” he wrote. “The media helps keep government honest.”

Moreover, it is also apparent that the media partners have been liaising with the US government beforehand, and that Assange himself attempted to reach out to the US. The Associated Press reported that “US officials submitted suggestions to the [New York] Times, which asked government officials to weigh in on some of the documents the newspaper and its partners wanted to publish,” and that these redactions were then shared with the other media partners, and with WikiLeaks. “The other news organizations supported these redactions,” Bill Keller of the New York Times explained. “WikiLeaks has indicated that it intends to do likewise. And as a matter of news interest, we will watch their website to see what they do.”

As for Assange, the AP reported that “Days before releasing any of the latest documents, Assange appealed to the US ambassador in London, asking the US government to confidentially help him determine what needed to be redacted from the cables before they were publicly released. The ambassador refused, telling Assange to hand over stolen property. State Department spokesman P.J. Crowley called Assange’s offer ‘a half-hearted gesture to have some sort of conversation.’” However, as was reported in the Washington Post, “Assange then wrote another letter to State, reiterating that ‘WikiLeaks has absolutely no desire to put individual persons at significant risk of harm, nor do we wish to harm the national security of the United States.’ In that second letter, Assange stated that the department’s refusal to discuss redactions ‘leads me to conclude that the supposed risks are entirely fanciful,’ and then indicated that WikiLeaks was undertaking redactions on its own.”

This cooperation wth the US government, in turn, raises two additional questions: how can Assange and WikiLeaks be the prime villains in the “Cablegate” releases, when they have, in effect, acted as little more than a conduit between the original whistleblower (or whistleblowers) and the mainstream media, and what is the mainstream media’s agenda? On this latter point, I would have to conclude — and this is not meant to sound uncharitable — that they have seized on “Cablegate” as a way of using both the initial whistleblower(s) and WikiLeaks as the basis for what, at the current rate, could be at least a years’ worth of front-page or otherwise significant stories.

6.

Discussions about Julian Assange’s alleged sex crimes are unwise unless, or until he has been extradited to Sweden and officially charged.

7.

Discussions about Julian Assange’s possible extradition to the US are, however, extremely important. In light of the above, it is somewhat inexplicable that, in announcing “an active, ongoing, criminal investigation” into WikiLeaks’ releases, Attorney General Eric Holder “declined to equate WikiLeaks to traditional news organizations that enjoy certain free-speech protections,” as the AP described it. “I think one can compare the way in which the various news organizations that have been involved in this have acted, as opposed to the way in which WikiLeaks has,” Holder said, although he “did not elaborate on the distinction he sees between WikiLeaks and the publications.”

Nevertheless, the latest reports suggest that the US government is indeed looking at ways to extradite Assange to the US. Its basis for doing so is the Espionage Act of 1917. This criminalizes the communication of “information relating to the national defense,” which “the possessor has reason to believe could be used to the injury of the United States.”  However, as Peter Kirwan noted on Wired, although the Espionage Act “theoretically makes criminals of Julian Assange, the newspaper editors working with WikiLeaks and anyone who reads, or even Tweets, about the contents of a classified cable, [t]he law’s sweeping nature has troubled judges for the best part of a century. As a result, administrations have become reluctant to deploy it.” Kirwan added, “A civilian recipient of classified data has never been convicted under this law. Nor has someone like Assange, who will claim to be protected by the First Amendment to the US Constitution, which protects freedom of speech and freedom of the press.”

This is certainly true. Although the Nixon White House pursued “The Pentagon Papers” whistleblower Daniel Ellsberg under the Espionage Act, it is Bradley Manning, and not Julian Assange, whose position corresponds to that of Daniel Ellsberg. Assange’s position is more analogous to that of the New York Times in Ellsberg’s case (publishing the leaked papers), and, of course, Nixon refused to pursue the Times, accepting, as the courts have since 1917, that part of the media’s function, in a society with free speech, is the ability to draw on information produced by whistleblowers. As Peter Kirwan also noted, however, to pursue Assange, the Obama administration “may be forced to argue that WikiLeaks isn’t a media organisation, but merely a web site, devoid of editorial functions, that publishes raw data,” although “The argument that only ‘established’ media outlets can count on First Amendment protection is profoundly at odds with the reality of media production and consumption in the 21st century. Any prosecution on these grounds will provoke storms of criticism and ridicule.”

In addition, Assange’s close working relationship with WikiLeaks’ media partners further undermines the US government’s argument, as do comments made by defense secretary Robert Gates, described in an op-ed in the Washington Post last week as “a savvy Washington veteran” by former federal prosecutor Baruch Weiss, who made a point of noting Gates’ comments on the supposed WikiLeaks scandal.  “I’ve heard the impact of these releases on our foreign policy described as a meltdown, as a game-changer and so on,” Gates told reporters at the Pentagon, but added, crucially, “I think those descriptions are fairly significantly overwrought … Is this embarrassing? Yes. Is it awkward? Yes. Consequences for US foreign policy? I think fairly modest.”

8.

In contrast, ardent right-wingers (and the Democratic Senator Dianne Feinstein) have looked idiotic in their hysterical condemnations of the leaks. Feinstein wrote an op-ed in the Wall Street Journal, in which, contradicting Secretary Gates, she argued that the “damage to national security” caused by the leaks “is beyond question.” Others, of course, called for Assange’s assassination, or described him, predictably, as a terrorist, but perhaps the most damaging response that is somewhat rooted in the real world came from Sen. Joe Lieberman, the chairman of the Senate Homeland Security and Government Affairs Committee, who suggested that the New York Times and other news organisations, as well as WikiLeaks, should be investigated under the Espionage Act. Lieberman told Fox News, “To me the New York Times has committed at least an act of, at best, bad citizenship, but whether they have committed a crime is a matter of discussion for the Justice Department.” Lieberman is clearly pushing against 93 years of judicial refusal to prosecute traditional media outlets for their reporting — and their defense of free speech — but as has been made clear above, I think it is fair and appropriate to argue that WikiLeaks is more of a media outlet than anything else, and as Steve Vladeck, professor of law at American University, has explained, Lieberman’s angling for media prosecutions represents “crossing a proverbial Rubicon that even the most secrecy-obsessed, First Amendment-indifferent administrations have consistently refused to attempt to bridge.” The results, as Peter Kirwan noted, “would include a full-blown constitutional crisis.”

9.

Even more worrying, however, has been the extra-legal pressure exerted by senior officials in the Obama administration, who, it seems, have been directly responsible for putting pressure on companies hosting WikiLeaks, or companies accepting donations for WikiLeaks, to shut down those operations. Personally, I can understand that, when the US government whispers threateningly down the phone at senor executives of major companies, they do what they are told. As a result, I am unwilling to condemn unconditionally the cowardice of companies like Amazon, PayPal, Mastercard and others, who have been subjected to customer boycotts on a large scale since their capitualtion emerged. What does interest me, however, is how hackers — including, most notoriously, the group identified only as “Anonymous,” — have responded by taking down some of these sites. Again, I’m not convinced that this is the most appropriate course of action with regard to those individual companies, but as a demonstation of the power of hackers to throw down a gauntlet to a US administration which is clearly guilty of bullying and aggression that has nothing to do with its supposed legal compiants against Assange and Wikileaks — and fears that the US stance wil lead to attempts to clamp down viciously on the Internet — it is a powerful demonstration of quite what they are up against.

10.

My final point, briefly, concerns reports that Julian Assange has a secret weapon to be used if anything adverse happens to him, or to WikiLeaks, which his lawyer, perhaps ill-advisedly, refered to as a “thermonuclear device.” This is a 1.4 GB file, labeled “insurance,” which was uploaded onto the WikiLeaks website in late July, just after the publication of the Afghan war logs, and has been downloaded by tens of thousands of supporters, altthough the 256-digit code required to unlock it has not been released. Assange himself has stated, “We have over a long period of time distributed encrypted backups of material we have yet to release. All we have to do is release the password to that material, and it is instantly available.”

The “insurance” file reportedly includes all the diplomatic cables, plus some or all of the following, which are reportedly in WikiLeaks’ possession: unredacted military reports from Guantánamo, reports on BP and other energy companies, documents on the Bank of America, and an aerial video of a US airstrike in Afghanistan that killed civilians. While the notion of banking secrets being exposed strikes me as phenomenally important — and undoubtedly in the public interest — I am, of course, fascinated by the mention of the Guantánamo files, which I had been told about confidentially some months ago. Theoretically, these could be phenomenally revealing, although I doubt, with the present political climate in the US, that, if released, they would do anything other than reinforce calls for the prison never to be closed at all, which makes me deeply hesitant about the prospect of them being made available.

In conclusion, then, although my inner anarchist has a tendency to celebrate the sweeping disclosure of secrets, the more nuanced person that I have become prefers to occupy a place in which a certain amount of responsible editorializing takes place — as, indeed, as been happening with WikiLeaks and its media partners. What is also clear is that the US administration’s bullying is intolerable, and I have little time for its wailing about secrets that were so ludicrously unprotected in the first place. Moreover, although I have no particular allegiance to Julian Assange, and believe that Bradley Manning is being unfairly overlooked in all the focus on Assange, WikiLeaks itself — especially in its global context, shining a light on closed regimes, rather than just in its focus on the US — remains an extraordinarily useful organization, or perhaps, I should say, an extraordinary important concept, and one that others, if they have the necessary security skills, can and should consider emulating.

All secrets may, indeed, not be worth releasing, just because they can be, but I’ve yet to see any evidence that the majority of the secrets maintained by governments do anything to improve the lives of the majority of their citizens — or of those affected by their political maneuvering around the world — and on that basis this whole crisis is not just about free speech, but about the legitimacy — and the legitimate reach — of mechanisms available in the 21st century for exposing the wrongdoing of governments, on the part, generally, of those who want the world to be a better, fairer and more just place.

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

Cross-posted on Common Dreams, The Public Record, The Smirking Chimp, Op-Ed News and William Bowles.

The case concerns Anwar al-Awlaqi (aka al-Awlaki or al-Aulaqi), an American citizen living in Yemen, who “was placed on kill lists maintained by the CIA and the US military’s Joint Special Operations Command (JSOC) earlier this year,” as the Center for Constitutional Rights has explained. Al-Awlaki was also labeled as a “specially designated global terrorist” on July 16, even though, behind the rhetoric, doubts have been expressed about his significance, which make it obvious that there are profound problems in allowing the executive branch to have the unfettered power to decide when American citizens should be designated for assassination.

As Gregory Johnsen, a doctoral candidate in Near Eastern studies at Princeton University, who writes the blog Waq al-Waq, explained in an op-ed for the New York Times on November 19:

[N]o one should remain under the mistaken assumption that killing Mr. Awlaki will somehow make us safer. He is far from the terrorist kingpin that the West has made him out to be. In fact, he isn’t even the head of his own organization, Al-Qaeda in the Arabian Peninsula. That would be Nasir al-Wuhayshi, who was Osama bin Laden’s personal secretary for four years in Afghanistan … Mr. Awlaki isn’t the group’s top religious scholar (Adil al-Abab), its chief of military operations (Qassim al-Raymi), its bomb maker (Ibrahim Hassan Asiri) or even its leading ideologue … Rather, he is a midlevel religious functionary who happens to have American citizenship and speak English. This makes him a propaganda threat, but not one whose elimination would do anything to limit the reach of the Qaeda branch.

The lawsuit was submitted in August by the ACLU and CCR on behalf of Anwar al-Awlaqi’s father, Nasser al-Awlaqi, against President Obama, CIA Director Leon Panetta, and Defense Secretary Robert Gates, challenging their decision to authorize the “targeted killing” of Anwar Al-Awlaqi as a violation of the Constitution and international law.

Quite how Judge Bates reached his conclusion is beyond me. On technical grounds, it may well be that, as the ACLU explained, “the plaintiff did not have legal standing to challenge the targeting of his son,” but I fail to understand how Judge Bates also concluded “that there are circumstances in which the Executive’s unilateral decision to kill a US citizen overseas is ‘constitutionally committed to the political branches’ and judicially unreviewable.”

Over nine years after the 9/11 attacks that prompted the Bush adminstration to launch the “War on Terror” that is clearly alive and well in the United States, despite a change of administration, it appears that the merest mention of “war” and “the executive” in the same breath is enough to send otherwise sane and responsible judges scuttling to abdicate their responsibilities.

Judge Bates, to be sure, made a show of struggling with this particular problem — before giving up on it. Referring to his conclusion about executive power, he acknowledged “the somewhat unsettling nature of its conclusion” and, as the ACLU explained, he also

called the case “unique and extraordinary,” said it presented “[s]tark, and perplexing, questions” and found that the merits “present fundamental questions of separation of powers involving the proper role of the courts in our constitutional structure.” Ultimately, however, he dismissed the case on procedural grounds and found that “the serious issues regarding the merits of the alleged authorization of the targeted killing of a US citizen overseas must await another day.”

Unanswered, therefore, are the answers to three important questions posed by the ACLU and CCR:

Outside of the context of armed conflict, should it not be the case that the government can only carry out the “targeted killing” of an American citizen “as a last resort to address an imminent threat to life or physical safety”?

Why did the court not order the government to disclose the legal standard it uses to place US citizens on government kill lists?

and

“How is it that judicial approval is required when the United States decides to target a US citizen overseas for electronic surveillance, but that, according to defendants, judicial scrutiny is prohibited when the United States decides to target a US citizen overseas for death?”

After the ruling, CCR attorney Pardiss Kebriaei stated, “The court refused to hear a claim on behalf of a US citizen under threat of death by his own government that his personal constitutional rights have been violated — exactly what the court itself acknowledges it appears no court has ever done.” She added, “The court’s holding on the political question doctrine is indeed ‘unsettling.’”

In addition, Jameel Jaffer, Deputy Legal Director of the ACLU, said:

If the court’s ruling is correct, the government has unreviewable authority to carry out the targeted killing of any American, anywhere, whom the president deems to be a threat to the nation. It would be difficult to conceive of a proposition more inconsistent with the Constitution or more dangerous to American liberty. It’s worth remembering that the power that the court invests in the president today will be available not just in this case but in future cases, and not just to the current president but to every future president. It is a profound mistake to allow this unparalleled power to be exercised free from the checks and balances that apply in every other context. We continue to believe that the government’s power to use lethal force against American citizens should be subject to meaningful oversight by the courts.

This is not the end of the story, of course, as there will undoubtedly be an appeal. In the meantime, perhaps someone close to the administration might like to draw attention to the conclusion reached by Gregory Johnsen in hs recent op-ed:

[U]ntil the Obama administration put him on its hit list, [Anwar al-Awlaqi] had little standing in the Arab world. Now, however, Al-Qaeda in the Arabian Peninsula is taking advantage of this free advertising. No propaganda from the group had ever mentioned his name before it was reported in January that the United States had decided he could be legally assassinated. Shortly after, an article in the official Qaeda journal trumpeted that Mr. Awlaki had not been killed in December, as had been reported, in an air attack on a gathering in Shabwa Province.

So now that it has given Mr. Awlaki such a high profile, the administration is in a bind: if it ignores him, it will look powerless; if it succeeds in killing him, it will have manufactured a martyr. The best way out is to redouble its efforts to track down the real, more dangerous leaders of the Yemen group like Mr. Wuhayshi and Mr. Asiri, who likely made the bombs used in the [recent, foiled] parcel attacks and carried by Umar Farouk Abdulmutallab, the so-called Christmas Day bomber.

Mr. Awlaki’s name may be the only one Americans know, but that doesn’t make him the most dangerous threat to our security.

Moreover, when it comes to losing the propaganda war, someone close to the administration might also want to mention that it is nearly a year since, in the wake of the failed Christmas Day bombing, President Obama capitulated to Republican hysteria and announced a moratorium on the release of any more Yemenis from Guantánamo, even though the Guantánamo Review Task Force convened by President Obama had recommened that 29 of those held could be immediately released to Yemen — and that 30 more could be released if the security situation improved.

I have problems with the conditions attached to the release of those 30, but a more urgent problem is the fate of the 29 others recommended for immediate release. One of these men — Mohammed Hassan Odaini, a transparently innocent student seized by mistake — was freed last July after he won his habeas corpus petition, but the rest are still held, adding not to America’s security, but to a feeling of ill-will in Yemen, where people have, rightly, concluded that the entire population has been tarred as terrorist sympathzers, and where the cleared Yemenis can, in all honesty, only be regarded as political prisoners.

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

As published exclusively on Cageprisoners.

In this first America, President Obama swept into office issuing executive orders promising to close Guantánamo and to uphold the absolute ban on torture, and also suspended the much-criticized system of trials by Military Commission used by the Bush administration to secure just three contentious convictions in seven years.

In addition, in April 2009 he complied with a court order to release four “torture memos” issued in 2002 and 2005 by lawyers in the Justice Department’s Office of Legal Counsel, which purported to redefine torture so that it could be used by the CIA (in 2002), or broadly upheld that decision (in 2005). As well as confirming the role of the courts in upholding the law, these documents contained important information for those hoping to hold senior Bush administration officials and lawyers accountable for their actions in the “War on Terror.”

The final flourish of this period was the decision to move a Guantánamo prisoner to New York to face a federal court trial, which took place in May 2009. Ahmed Khalfan Ghailani, a Tanzanian seized in Pakistan in July 2004, was held in secret CIA custody for over two years, until he was moved to Guantánamo in September 2006, with 13 other men regarded as “high-value detainees.”

Ghailani’s transfer to face justice in New York for his involvement with the 1998 African embassy bombings was important not only because it confirmed that Guantánamo prisoners could be tried in federal court, rather than by Military Commission, but also because it established a connection with the way in which justice had been pursued before the 9/11 attacks. Ghailani had been indicted for his part in the African embassy bombings in 1998, and three of his alleged co-conspirators had been successfully tried and convicted in federal court in May 2001, prior to receiving life sentences in October 2001.

Unfortunately, in the second America, which emerged on the same day as Ghailani’s transfer, the rule of law has, for the most part, given way to political expediency and the blatant obstruction of justice, which have served only to reinforce the hideous novelties introduced by the Bush administration in its “War on Terror,” and to prevent any attempt to secure accountability for those responsible for the administration’s crimes.

This second America began with a major speech on national security in which the gains made by moving Ghailani to New York were offset by a decision to revive the Military Commissions, and also to hold some prisoners in Guantánamo indefinitely without charge or trial, shattering the notion, prevalent until that date, that prisoners would either be released or charged in federal court.

This announcement came just five days after Obama changed his mind about complying with another court order — this one involving the release of photos showing the abuse of prisoners in US custody in Afghanistan and Iraq — and although this decision was, perhaps, justified on the basis that it would inflame anti-American sentiment in both countries, it was later revealed that, around the same time, the President had also capitulated to far less justifiable criticism of a plan hatched by Greg Craig, the White House Counsel.

Craig, who had also been the driving force behind the President’s executive orders when he took office, had been close to resettling two Uighur prisoners at Guantánamo on the US mainland, in order to break a deadlock involving cleared Guantánamo prisoners who could not be repatriated because they faced the risk of torture, and also to send out a clear message to America’s allies that, in closing Guantánamo, the administration was prepared to acknowledge its own mistakes, and was hoping that other countries would therefore help out by taking other cleared prisoners who could not return home.

The Uighurs are Muslims from China’s oppressed Xinjiang province, and the 17 men in Guantánamo at that time were clearly innocent men, who had won their habeas corpus petition in a US court in October 2008, after the Bush administration gave up all pretence that they were “enemy combatants.” However, although Greg Craig had secured support for his plan from Hillary Clinton and defense secretary Robert Gates, Obama quashed it when Republicans got wind of it, leaving the Uighurs scrabbling around for a new home, and making the job of finding new homes for other cleared prisoners more difficult, especially as Republicans — and members of Obama’s own party — followed up on this successful attempt to intimidate the President by passing a law preventing him from bringing any cleared prisoner to the US mainland.

Since then, capitulation to pressure has been the name of the game. Last November, Attorney General Eric Holder announced that the “high-value detainee” Khalid Sheikh Mohammed, and four other HVDs accused of involvement with the 9/11 attacks, would, like Ghailani, face a federal court trial in New York. However, when a Republican-led backlash started, Obama caved in once more, refusing to press the advantage gained by having already moved Ghailani to New York, and freezing into inaction, taking the decision away from Holder about where and how the men would be tried, but refusing to make any decision at all.  Part of the problem was that, on the same day that Holder announced the 9/11 trial, he also announced that five prisoners would face trials by Military Commission, leaving an option open for critics of federal court trials that should have been slammed firmly shut.

By January this year, the hysteria about the proposed 9/11 trial was at its height, and Obama’s inability to fight back meant that, when Umar Farouk Abdulmutallab, a Nigerian, was seized after failing to blow up a plane on Christmas Day, and was discovered to have been recruited in Yemen, the President caved in again. This time around, his critics’ demands were that no Yemenis should be released from Guantánamo. Even though 59 Yemenis had been approved for transfer to Yemen by the Guantánamo Review Task Force, consisting of 60 career officials and lawyers and established by the President to review the cases of all the Guantánamo prisoners, he announced a moratorium on the release of any Yemenis, which is still in place today and shows no sign of coming to an end.

In addition, Obama has done all in his power to ensure that nothing like the release of the “torture memos” in April 2009 will ever happen again. Early this year, he allowed a Justice Department “fixer,” David Margolis, to override the damning conclusion of a four-year internal investigation into the authors of the 2002 memos — John Yoo and Jay S. Bybee — in which Margolis downgraded the report’s conclusion that both men were deliberately guilty of “professional misconduct” with a mild rebuke for having apparently only exercised “poor judgment.”

In the courts, too, Obama has erected a seemingly impenetrable wall to accountability, invoking the little-known “state secrets” doctrine to block any attempt to have Bush-era crimes discussed in court, as, for example, in the case of five men subjected to “extraordinary rendition” and torture, who tried to sue Jeppesen Dataplan, Inc., a Boeing subsidiary responsible for acting as the CIA’s torture travel agent, and expanding this abuse of “state secrets” to defend two shocking innovations of his own: a massive increase in drone killings in Pakistan, and a decision to endorse the assassination of US citizens anywhere in the world, even though both projects appear to be illegal, and have attracted severe international criticism.

In this second America, the loss of the House of Representatives to the Republicans in the mid-term elections appears to have led only to the final confirmation that, on Guantánamo and national security issues, Obama is content to do nothing for the rest of his term in office.

This is in spite of significant developments in the trial of Ahmed Khalfan Ghailani, which has been taking place in a federal court New York for the last month. Ghailani’s trial has demonstrated that the traditional manner of trying terrorist suspects is fully functional — and can operate adequately even with the exclusion of evidence obtained through torture — and a decision is expected from the jury this week.

If the trial leads to a conviction, the result should allow the administration to sweep aside all criticism and proceed with the trial of Khalid Sheikh Mohammed and his four alleged co-conspirators, but as the Washington Post reported on Saturday, Obama administration officials have explained that the five men “will probably remain in military detention without trial for the foreseeable future.” As the Post explained:

The administration has concluded that it cannot put Mohammed on trial in federal court because of the opposition of lawmakers in Congress and in New York. There is also little internal support for resurrecting a military prosecution at Guantánamo Bay, Cuba. The latter option would alienate liberal supporters.

This may change, of course, as President Obama has not made an official announcement, but it seems unlikely, as everything else at Guantánamo has ground to a halt. Faced with ferocious opposition to any plans that made it through his wall of compromise and cowardice, Obama has demonstrated that he is content to continue holding the remaining 174 prisoners at Guantánamo on the basis of the Authorization for Use of Military Force, passed by Congress the week after the 9/11 attacks, even though the AUMF perpetuates the false notion that the Guantánamo prisoners are neither prisoners of war, nor criminal suspects, but are still that third category of prisoner invented by the Bush administration: “enemy combatants,” or, as they now are, “alien unprivileged enemy belligerents,” who occupy a unique, and uniquely disturbing position, which, for the majority of the men, is still akin to a legal black hole, despite the fact that they were granted habeas corpus rights by the Supreme Court in June 2008.

Consider the facts: On the trial front, even though the Task Force recommended that 34 of the remaining prisoners should face trials, the administration is currently proceeding with the trial of just one man, Noor Uthman Muhammed, in the Military Commissions (following the scandalous betrayal of justice last month in the case of the former child prisoner Omar Khadr), and in federal court, the officials who spoke to the Washington Post suggested that even a successful outcome in Ghailani’s trial would lead to nothing more than possibly a single “clean case against an unknown.”

As for the rest of the prisoners, there are 48 whom the Task Force recommended should continue to be held indefinitely without charge or trial, and 58 Yemenis who are going nowhere. Excluding Omar Khadr, Ibrahim al-Qosi and Ali Hamza al-Bahlul, the three remaining men convicted in trials by Military Commission, this leaves just 33 prisoners “approved for transfer,” who, if new homes can be found, might be the only prisoners to be released from Guantánamo in the next two years, confirming the extent to which the closure of the prison has become irrelevant to President Obama and the Democrats in general.

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

As published exclusively on the website of the Future of Freedom Foundation. Cross-posted on The Public Record, Op-Ed News, Pulse, Uruknet and James Landrith.

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Everything about the last week’s events at Guantánamo has been deeply disturbing. On Monday, in defiance of international obligations requiring the rehabilitation of child prisoners, the US government — under President Obama — fulfilled the deepest wishes of the Bush administration, and persuaded Omar Khadr, the Canadian citizen who was just 15 years old when he was seized after a firefight in Afghanistan in July 2002, to plead guilty to charges of murder in violation of the laws of war, attempted murder, spying, conspiracy, and providing material support to terrorism, in a plea deal that apparently involves an eight-year sentence, with Khadr serving one more year at Guantánamo before being returned to Canada.

At the heart of the plea deal is a 50-point “Stipulation of Fact” (PDF), signed by Khadr and stating that he “does not have any legal defense to any of the offenses to which he is pleading guilty,” in which, despite his previous protestations to the contrary, he accepted that he threw a grenade that killed Delta Force Sgt. Christopher Speer on the day of his capture, and, moreover, that he was, at the time, an “alien unprivileged enemy belligerent,” who did not have “any legal basis to commit any war-like acts” at all.

As part of the Bush administration’s apparently successful rewriting of international law — facilitated by President Obama and lawmakers in Congress — Khadr was therefore obliged not only to forego further complaints about his age at the time of his capture, and the responsibility of others for indoctrinating him, but also to accept that he had been captured in circumstances in which it was impossible for him to be a legitimate combatant.

He was also required to stay silent in the face of compelling evidence that these dubious-sounding war crimes to which he signed his name were not in fact war crimes at all, and were only invented by Congress in 2006, as former Guantánamo military defense attorney Lt. Col. David Frakt explained last summer. In addition, he also had to overlook the fact that, when the Commissions were revived last year, defense secretary Robert Gates added a new twist to the fictional war crimes so that, as Lt. Col. Frakt explained in April this year, “a detainee may be convicted of murder in violation of the law of war even if they did not actually violate the law of war.”

This was Lt. Col. Frakt’s full explanation of this particular point:

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

However, rather than dwelling on these profoundly disturbing truths about the nature of Khadr’s “crimes,” the significance of his age at the time of his capture, and the pressure he was put under to reverse the implacable opposition to a plea deal that he demonstrated in summer, the media, for the most part, allowed themselves last week to be ushered into the next stage of the game: a week of sentencing hearings, involving witnesses called by the prosecution and the defense, to enable a seven-person military jury to deliver its own sentence, which, bizarrely, will mean nothing unless the jurors deliver a sentence shorter than the one agreed in secret as part of the plea deal.

As I reported in a previous article, the government took full advantage of this platform to summon a purported psychiatric expert, Michael Welner, who in fact delivered an Islamophobic tirade and threw out provocative soundbites that were snapped up by a sensation-hungry journalists — describing Khadr as, amongst other things, “Al-Qaeda royalty” and “highly dangerous” — and also summoned a soldier wounded in the firefight and Tabitha Speer, the widow of Sgt. Speer.

One of the few commentators to pick up on this particularly manipulative choice of witnesses was Thomas Walkom of the Toronto Star, who, with reference to Tabitha Speer’s testimony, wrote in his column today, “While heart-wrenching, her testimony glided over the queerest irony of this case — that after a pitched battle between clearly delineated forces, in which soldiers on both sides killed, only one person from one side ended up accused of murder.” (Walkom ended his column by noting that, when Khadr eventually returns to Canada, the government “will ignore, as almost everyone seems to ignore, the absurdity of prosecuting a soldier for killing his enemy in battle”).

Khadr’s defense team managed to secure a few important witnesses, including Navy Capt. Patrick McCarthy, the former top military legal adviser at Guantánamo, who called Khadr respectful, pleasant and friendly, and added, “Fifteen-year-olds, in my opinion, should not be held to the same level of accountability as adults.” In addition, as the Edmonton Journal reported today, his defense team drew on correspondence between Khadr and Arlette Zink, a teacher in Canada. She has corresponded with Khadr for the last two years, and has been encouraging him in his voracious appetite for literature, and, echoing Capt. McCarthy, she described him as a “polite, thoughtful, intelligent person.”

For the most part, however, Khadr’s lawyers were hobbled by their inability to dwell on the fundamental problems with the trial mentioned above, and also by the judge’s refusal to let them discuss another deeply disturbing aspect of Khadr’s story — the torture and abuse to which he was subjected, at least in the first two years of his imprisonment.

Back in May, I discussed some of the claims made by Khadr, as described in an affidavit submitted in February 2008 (PDF), in an article entitled, “The Torture of Omar Khadr, a Child in Bagram and Guantánamo,” in which I explained how

[Khadr] described his mistreatment in detail, explaining how he was unconscious for a week after his capture, when he was severely wounded, and how, in Bagram, where he was taken after just two weeks in a hospital, his interrogations began immediately, at the hands of an interrogator who manipulated his injuries (the exact details were redacted from his affidavit). Crucially, he also explained how, as soon as he regained consciousness, “the first soldier told me that I had killed an American with a grenade,” and how, during his first interrogation at Bagram, “I figured out right away that I would simply tell them whatever I thought they wanted to hear in order to keep them from causing me [redacted].”

As I also explained:

There is much more in the affidavit — casual cruelty, whereby guards made Khadr do hard manual labor when his wounds were not healed, and, significantly, threats “to have me raped, or sent to other countries like Egypt, Syria, Jordan or Israel to be raped.” He also noted, “I would always hear people screaming, both day and night,” and explained that other prisoners were scared of his interrogator. “Most people would not talk about what had been done to them,” he declared. “This made me afraid.”

Khadr also described what happened to him in Guantánamo, where, as I explained [in a previous article], he “arrived around the time that a regime of humiliation, isolation and abuse, including extreme temperature manipulation, forced nudity and sexual humiliation, had just been introduced, by reverse-engineering torture techniques, used in a military program designed to train US personnel to resist interrogation if captured, in an attempt to increase the meager flow of ‘actionable intelligence’ from the prison.”

At various points in 2003, while the use of these techniques was still widespread, Khadr stated that he was short-shackled in painful positions and left for up to ten hours in a freezing cold cell, threatened with rape and with being transferred to another country where he could be raped, and, on one particular occasion, when he had been left short-shackled in a painful position until he urinated on himself, “Military police poured pine oil on the floor and on me, and then, with me lying on my stomach and my hands and feet cuffed together behind me, the military police dragged me back and forth through the mixture of urine and pine oil on the floor. Later, I was put back in my cell, without being allowed a shower or a change of clothes. I was not given a change of clothes for two days. They did this to me again a few weeks later.”

Crucially, when describing the interrogations that punctuated these experiences at Guantánamo, Khadr explained, “I did not want to expose myself to any more harm, so I always just told interrogators what I thought they wanted to hear. Having been asked the same questions so many times, I knew what answers made interrogators happy and would always tailor my answers based on what I thought would keep me from being harmed.”

Given the well-chronicled accounts of torture and abuse in Bagram and Guantánamo, including two murders in Bagram just months after Khadr was held there, and the official implementation of reverse-engineered torture techniques at Guantánamo in 2002 (which continued until 2004), it was disturbing that the judge in Khadr’s case, Army Col. Patrick Parrish, brushed over allegations of abuse and of rape threats that surfaced in pre-trial hearings in May (which I described in the article mentioned above), for two reasons. The first is because it keeps hidden from view the long and often brutal history of the Bush administration’s detention policies in the “War on Terror,” as experienced by everyone held at Guantánamo and in other Bush-era prisons, and the second is  because it specifically deprived Khadr of the opportunity to remind jurors — and the wider world — of the pressure he was put under to confess to the “crimes” of which he was accused.

On Friday, the defense team finally managed to mention the abusive conditions in which Khadr was held in Bagram, when one of his lawyers, Lt. Col. Jon Jackson, read out an unsworn statement by Khadr relating to an exchange he had with Joshua Claus, who, at the time, was a sergeant in the 519th Military Intelligence Battalion. Claus later served a five-month prison sentence after pleading guilty in a court martial to the abuse of an unidentified prisoner at Bagram, who was made “to roll back and forth on the floor and kiss the boots of his interrogator,” as Michelle Shephard described it in the Toronto Star, and also for his part in the murder of Dilawar, an Afghan taxi driver whe died in Bagram in December 2002.

As Claus conceded in May, he had come up with a scenario to terrify Khadr, which involved him being sent to a US prison and gang-raped, and the following statement by Khadr, describing his response to this threat, was the defense team’s last submission on Friday. It remains to be seen if it will sway the jury in any way as the jurors make their deliberations this weekend, deciding between, on the one hand, prosecutor Jeff Groharing’s description of Khadr as “a terrorist and a murderer,” who should be given a 25-year sentence, and, on the other, Lt. Col. Jackson’s description of him as a “child with a bad dad,” who “was radicalized as a child and has matured and changed while in US custody.” In his final words to the jury, Jackson said, “Every kid who has ever been born … deserves a second chance. This case is about giving Omar Khadr a first chance because he’s never had it. Send him back to Canada, let him start his education and career. There’s going to be no good in keeping him here. Send him home.”

Omar Khadr’s unsworn statement about the rape threat he received in Bagram

I ask that you consider this letter about what happened to me at Bagram in 2002. It is hard for me to talk about. I know it does not change what I did but I hope you will think about it when punishing me.

At first I did not tell them my interrogators what really happened. My main interrogator, Interrogator #1 [Sgt. Claus], told me he knew I was lying. He told me that it was fine if I did not tell him the truth. He told me a story about a young Afghan who lied to him. He told me they thought the Afghan guy had not done anything seriously wrong. But they sent him to an American prison for lying to Americans.

He told me a story about an Afghan getting sent to an American prison, and he said there’s a bunch of, you know, big black guys and, you know, the big Nazis are there, and they noticed this little Afghan who doesn’t speak their language. He, you know, he prays five times a day; he’s got to be a Muslim. Remember, they’re Americans. They’re still kind of upset and mad about the September 11th attacks, so, you know, they’re still patriotic even though they’re inmates. And the guards, they do everything they can to protect this little guy and keep him out of harm’s way, but, you know, nobody could be everywhere at once. Things happen. We don’t want things to happen, especially to anybody, and this poor little kid, we couldn’t clear out. You know, he’s like 20 years old. He’s kind of scared. He’s away from home; kind of isolated, you know, no one can really understand him.

It would be unfortunate that, you know — that apparently one time he was in the shower by himself and these four big black guys, they showed up in prison. They said, hey, we know all about you Muslims. You attacked the country. And we didn’t want anything to happen to this kid. We just wanted him to talk to us, but he decided he wanted to lie and didn’t want to be straight with us. And it’s terrible that something would happen but, you know, they caught him in the shower and they raped him and, you know, it was terrible. This kid got hurt. And we think he ended up dying but we’re not quite sure.

This story scared me very much and made me cry. Interrogator #3 was also there and he saw the whole thing happen.

Signed Omar A. Khadr

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

Cross-posted on Common Dreams, The Smirking Chimp, The Public Record and Uruknet.

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

In the last few months, there have been a few improvements — hearings, releases, even the promise of imminent trials — but behind this veneer of respectability, the US government’s unilateral reworking of the Geneva Conventions continues unabated, and evidence has recently surfaced of a secret prison within Bagram, where a torture program that could have been lifted straight from the Bush administration’s rule book is still underway.

From December 2001 to November 2003, the US prison at Bagram airbase was used by the US military to process prisoners for Guantánamo, and in those early days it played host to a murderous regime that, in the last half of 2002, led to the deaths of at least two — and possibly as many as five — prisoners. Throughout this period, and after the transfer of regular prisoners to Guantánamo came to an end, Bagram — or, in some cases, a facility within Bagram — was where prisoners regarded as more significant than the general population, who had mostly passed through a number of other secret prisons run by the CIA, were also held, and for the last six and a half years Bagram has, in addition, been the US military’s frontline prison in the Afghan war zone.

Shining a light on these stories has been immensely difficult, of course. From time to time, reports surfaced of Afghan prisoners released from the facility, who described the abusive regime at the prison, but the stories of the prisoners regarded as more significant have remained mostly hidden, surfacing only in reports from those who were transferred to Guantánamo, through information released by their lawyers (after passing the Pentagon’s censors), and, on the odd occasion, through other means — as, for example, in a handful of habeas corpus petitions, in this report on the multiple renditions of Ibn al-Shaykh al-Libi, who was finally returned to Libya, where he died in a prison last May, and in the leaked report by the International Committee of the Red Cross on the 14 “high-value detainees” transferred to Guantánamo from secret prisons in September 2006 (PDF).

Last August, the New York Times brought Bagram’s secret prison to light, reporting that Special Operations forces were running secret prisons, known, perhaps euphemistically, as “temporary screening sites,” at Bagram, and also in Balad, Iraq (a replacement for the notorious Camp Nama, where abuse was rife). The Times explained that, according to three military officials, “As many as 30 to 40 foreign prisoners have been held at the camp in Iraq at any given time, adding that “they did not provide an estimate for the Afghan camp but suggested that the number was smaller.”

The Times report coincided with an apparent shift in US policy, with the Pentagon announcing that the military would be allowing representatives of the International Committee of the Red Cross to have access to prisoners held in the secret prisons at Bagram and Balad. As the Times described it, “the military must notify the Red Cross of the detainees’ names and identification numbers within two weeks of capture, a notification that before happened only after a detainee was transferred to a long-term prison.”

Under previous rules, those imprisoned in the Special Operations prisons could be held incommunicado for up to two weeks, in defiance of internationally agreed standards governing the detention of prisoners. As the Times explained, “Formerly, the military at that point had to release a detainee; transfer him to a long-term prison in Iraq or Afghanistan, to which the Red Cross has broad access; or seek one-week renewable extensions from Defense Secretary Robert M. Gates or his representative.” Announcing the new policy, a senior Pentagon official added that the “option to seek custody extensions” had been eliminated.

Voices from Bagram’s secret prison

Although the New York Times report was important, it was largely overlooked at the time, and it was not until November that the existence of the secret prison burst out of the shadows, when both the New York Times and the Washington Post interviewed former prisoners. The Times spoke to Hayatullah, a 33-year old pharmacist, who was seized from his shop in Kandahar in July 2007, and released in October 2009; Gulham Khan, a 25-year old sheep delivery man, who was seized by US forces in three helicopters at a village in the desert outside Ghazni in late October 2008, and released in early September 2009; and Hamidullah, a 42-year old spare auto-parts dealer, who was seized from his house in Kandahar in a midnight raid in June 2009 and released in late October. All told similar stories, and this was Hayatullah’s description of the secret prison:

They took me to a place that was completely dark except for one bulb. It was hard to know whether it was night, day or afternoon, I had no idea when to pray because I could not tell the time. There are no windows. That was the Tor jail. I was there for 40 days. At that Tor jail everybody was separate. Each in a concrete room. The walls and ceilings were concrete, but the detainees who had been there a long time told me it had been made of black wood before it was concrete and that’s why they called it the black jail. It’s difficult to know how many of us there were in that place. When you are taken to the interrogation office, you are blindfolded and there is a hood on your head. No one has permission to come to Tor jail. Neither the ICRC [International Committee of the Red Cross] or others.

The Post spoke to three teenagers — 17-year old Issa Mohammad, Abdul Rashid, “who said he is younger than 16,” and Sayid Sardar Ahmad, also 17 — at “the Afghan-run Juvenile Rehabilitation Center in Kabul, where they were transferred after their detention at Bagram and a brief stay in … Pul-i-Charkhi,” the main Afghan prison in Kabul. Rashid, a woodcutter from Khost province, told the Post that he was “arrested in the spring with his cousin and father during a US military raid,” and said of his interrogation, “That was the hardest time I have ever had in my life. It was better to just kill me. But they would not kill me.” He also explained that he “lived in a small concrete cell that was slightly longer than the length of his body. Food was tossed in a plastic bag through a slot in the metal door.” Mohammad, a vegetable farmer from Kandahar province, told the Post that he was also arrested during a US military raid, and spent two weeks in the secret prison, where “interrogation sessions lasted hours, with one man ‘yelling at me and also punching and slapping my face.’”

Both Mohammed and Rashid also explained that, “when they tried to sleep, on the floor, their captors shouted at them and hammered on their cells,” and the Post also spoke to two other former prisoners, Malik Mohammad Hassan, a tribal elder from the Jalalabad area, and Mohammad Mukhtar, a former teacher, who were held “for some time” in the prison, and who described “[s]imilar living conditions, particularly the lengthy sleep deprivation and intense cold.” Hassan told the Post, “This is something nobody can bear. It’s extraordinary. They treated us like wild animals.”

New revelations about the secret prison

On April 15 this year, the BBC followed up on these reports, speaking to a number of former prisoners who confirmed that the prison consists of windowless concrete cells, permanently illuminated, and that prisoners are subjected to sleep deprivation. A man called Sher Agha, who spent six days in the prison in autumn 2009, told the BBC, “They call it the Black Hole,” adding, “When they released us they told us we should not tell our stories to outsiders because that will harm us.” Like all the men interviewed by the BBC, he also explained that the cells were “very cold.”

Describing the process of sleep deprivation, another former prisoner, Mirwais, who said he was held for 24 days in the secret prison, stated, “I could not sleep, nobody could sleep because there was a machine that was making noise. There was a small camera in my cell, and if you were sleeping they’d come in and disturb you.”

On May 11, the BBC explained that the existence of the prison had been confirmed by the International Committee of the Red Cross. An ICRC representative also confirmed the change implemented in August 2009, as described above. Asked about the status of prisoners held “in a separate structure at Bagram,” the spokesman explained, “The ICRC is being notified by the US authorities of detained people within 14 days of their arrest. This has been routine practice since August 2009 and is a development welcomed by the ICRC.”

Despite this, the BBC reported that, although the existence of the facility had been disclosed in the New York Times report last August, a military spokesperson maintained that the main prison at Bagram, now identified as “the Detention Facility in Parwan,” was “the only detention facility on the base.” However, the day after, in a detailed article in the Atlantic, Marc Ambinder thoroughly demolished this claim.

Ambinder began by explaining how it had been previously reported that the secret prison, which is “beige on the outside with a green gate,” was “operated by members of a Joint Special Operations Command (JSOC) group,” which was allegedly outside of the jurisdiction of Vice Admiral Robert Harward, the commander in charge of detention operations in Afghanistan. However, he added, “JSOC, a component command made up of highly secret special mission units and task forces, does not operate the facility. Instead, it is manned by intelligence operatives and interrogators who work for the … Defense Counterintelligence and Human Intelligence Center (DCHC),” a branch of the Defense Intelligence Agency (DIA), the Pentagon’s main military intelligence department.

Complicating matters further, Ambinder also explained that DCHC “perform interrogations for a sub-unit of Task Force 714, an elite counter-terrorism brigade,” which, last year, was described to Spencer Ackerman of the Washington Independent by a National Security Council staffer as “‘small groups of Rangers going wherever the hell they want to go’ in Afghanistan and operating under legal authority granted at the end of the Bush Administration that President Obama has not revoked.”

Describing the process through which prisoners end up at the “black prison,” Ambinder added, “Usually, captives are first detained at one of at least six classified Field Interrogation Sites in Afghanistan, and then dropped off at the DIA facility — and, when the interrogators are finished, transferred to the main prison population at the Bagram Theater Internment Facility.” This provides an additional insight into the web of other secret, frontline facilities feeding into Bagram that I touched upon in an article earlier this year entitled, “Bagram: Graveyard of the Geneva Conventions,” and which were also exposed in an article by Anand Gopal for TomDispatch.com.

Pentagon spokesman Bryan Whitman attempted to dismiss Ambinder’s claim, stating that “DoD does operate some temporary screening detention facilities which are classified to preserve operational security,” but that “both the [Red Cross] and the host nation have knowledge of these facilities.” However, Ambinder’s report painted a bleaker picture, involving torture techniques contained in a little-known appendix to the current Army Field Manual.

Although President Obama issued an executive order on his second day in office, in January 2009, requiring interrogations to conform to the Army Field Manual (PDF), which prohibits physical violence and “enhanced interrogation,” Ambinder reported that, in the “black jail,” prisoners are subjected to sleep deprivation and isolation based on the Field Manual’s Appendix M (which Jeff Kaye has been writing about since last January), and which, under controlled circumstances, allows a range of Bush-era “enhanced interrogation techniques” to be used, including sleep deprivation and isolation. Ambinder also explained that when Appendix M techniques are being used, the man responsible for overseeing them is Gen.James Clapper (Ret.), the undersecretary of defense for intelligence.

Underscoring the difference between the general prison population at Bagram and those held by the DIA’s Defense Counterintelligence and Human Intelligence Center, Ambinder added that prisoners “designated as prisoners of war cannot be subjected to Appendix M measures.” To be strictly accurate, Marc Ambinder should have referred to prisoners “held in conditions that vaguely approximate those of prisoners of war,“ because President Obama has maintained the Bush administration’s unilateral reworking of the Geneva Conventions.

This will be discussed in the second part of this article, but for now the distinction between the general population of Guantánamo and those subjected to torture techniques in Bagram’s “black prison” — based on Marc Ambinder’s disturbing revelations about Appendix M and the activities of the Defense Counterintelligence and Human Intelligence Center — should be sufficient to rouse progressive critics of President Obama’s policies to demand transparency regarding the “black prison,” and to call for an end to this disturbing continuation of the Bush administration’s detention and interrogation policies.

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

As published exclusively on Cageprisoners. Cross-posted on Countercurrents, The Public Record, Uruknet, United Progressives and The World Can’t Wait.

For other articles relating to Bagram, see: Justice extends to Bagram, Guantánamo’s Dark Mirror (April 2009), When Torture Kills: Ten Murders In US Prisons In Afghanistan (July 2009), Judge Rules That Afghan “Rendered” To Bagram In 2002 Has No Rights (July 2009), Bagram Isn’t The New Guantánamo, It’s The Old Guantánamo (August 2009), Obama Brings Guantánamo And Rendition To Bagram (And Not The Geneva Conventions) and Is Bagram Obama’s New Secret Prison? (both September 2009), Andy Worthington Discusses Bagram on al-Jazeera (September 2009), A Letter From Afghanistan: Bagram, Afghan suffering and the futility of war (October 2009), Dark Revelations in the Bagram Prisoner List (January 2010), Bagram: Graveyard of the Geneva Conventions (February 2010), The Black Hole of Bagram (May 2010). Also see: Bagram: The First Ever Prisoner List (The Annotated Version).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(‘’)

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

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

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

This is certainly progress on the part of the administration, as it continues to work out how to close Guantánamo. Since the last announcement, senior officials have also made decisions about who to put forward for trial, announcing on November 13 that five men — including Khalid Sheikh Mohammed — will face federal court trials for their alleged involvement in the 9/11 attacks, and another five will be put forward for trial by Military Commission. Officials also briefed journalists that the number of prisoners expected to face any kind of trial would not exceed 40.

Based on the current population of Guantánamo (211 prisoners), this means that, deducting the 116 prisoners cleared for release and those scheduled to face trials, just 55 men remain in the most contentious category of all: those who will not face a trial, but who are not scheduled to be released either. Back in May, cowed by attacks from ranting Republicans and cowardly members of his own party, President Obama first began to waver dreadfully on Guantánamo, and not only proposed reviving the much-criticized Military Commissions as a parallel (or second-tier) judicial system for the prisoners, but also, to what should be his eternal shame, explained his intention to continue to hold some prisoners without charge or trial.

In a major national security speech, he described these prisoners as those who “cannot be prosecuted yet who pose a clear danger to the American people,” apparently oblivious to the fact that, by doing so, the administration was ignoring an inconvenient truth; namely, that, if senior officials find themselves unable to prosecute someone in Guantánamo, it is because the information they are using does not rise to the level of evidence, or is otherwise tainted by torture, and is therefore inherently unreliable.

As commentators, human rights groups and lawyers tore into Obama for even considering enshrining “preventive detention” in law, following his national security speech, another sub-text also eluded the administration: that officials were only proposing legislation that would, in effect, justify the Bush administration’s central conceit of the “War on Terror,” as a by-product of their difficulties in deciding whether to charge or release prisoners whose predicament had arisen solely because of the Bush administration’s disregard for the law in the first place.

By September, government officials acknowledged that the President would not need to seek legislation to establish a new system of preventive detention for those held in Guantánamo, because existing legislation already allowed the administration to hold prisoners indefinitely. As I explained at the time:

In dropping plans for new legislation … the administration has realized that it can continue to hold prisoners based on the Authorization for Use of Military Force, the Congressional resolution passed the week after the 9/11 attacks, which authorizes the President “to detain persons who he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible” for the attacks.

This is by no means perfect, of course. As the [New York] Times noted, “In concluding that it does not need specific permission from Congress to hold detainees without charges, the Obama administration is adopting one of the arguments advanced by the Bush administration in years of debates about detention policies,” although it added, accurately, that the President’s advisers “are not embracing the more disputed Bush contention that the president has inherent power under the Constitution to detain terrorism suspects indefinitely regardless of Congress.” As the Justice Department explained in a statement, the administration will “rely on authority already provided by Congress” under the AUMF, and “is not currently seeking additional authorization.”

Quite why it took the administration so long to realize this is beyond me, although perhaps it is tied in with the Democrats’ incessant desire to want to appear tough on national security issues. However, it should have been apparent all along, just as it should also have been apparent that, if the administration feared criticism, all it had to do was to leave it to the District Court judges who were ruling on the prisoners’ habeas corpus petitions courts to decide whether those held at Guantánamo met the AUMF’s threshold for detention.

Since June 2008, when the Supreme Court granted the prisoners constitutionally guaranteed habeas corpus rights, District Court judges have been examining the government’s evidence and, in 31 of the 39 cases in which they have reached a ruling, have concluded that the government has failed to establish, by a preponderance of the evidence, that these men were involved with al-Qaeda or the Taliban.

Of the 55 prisoners that the administration currently fears releasing, despite lacking the evidence to put them forward for a trial, eight are those who lost their habeas corpus petitions, and it would, therefore, make sense for the administration to allow the other 47 cases to proceed, secure in the knowledge that, whatever the outcome, the government can blame the courts, rather than accept responsibility itself.

This is no comfort to those who have already lost their habeas petitions, as they are waiting for a new conversation to begin, which, at present, shows no sign of starting up. This, in essence, involves asking whether it is justifiable that the AUMF, which fails to distinguish between al-Qaeda (a terrorist group) and the Taliban (the government of Afghanistan at the time of the US-led invasion in October 2001), can legitimately be used to endorse the indefinite detention of those who may have done nothing more than cook for Arab forces supporting the Taliban, or attend a military training camp in Afghanistan for one day only.

It seems to me that the answer may well be that the AUMF needs to be abandoned, as it is effectively the mechanism that was used to establish Guantánamo in the first place, and that, instead, those responsible for directing US policy need to decide whether those held at Guantánamo who have lost their habeas petitions were soldiers (in which case they should be held as prisoners of war, with the protections of the Geneva Conventions) or terrorists, who should face trials.

At present, however, these are nothing more than thoughts for the future. Right now, the administration needs to reconcile itself to the fact that the only way of dealing with the 47 prisoners about whom it has unverifiable doubts is to let judges test the basis of their detention, as ordered by the Supreme Court 18 months ago, especially as, on that occasion, the justices made a point of stressing that “[T]he cost of delay can no longer be borne by those who are held in custody. The detainees in these cases are entitled to a prompt habeas corpus hearing.”

When it comes to the 116 men who have now been cleared for release from Guantánamo, the administration needs to do more than just send Robert Gates to the Senate to make announcements that sound as though they mean something. Since May, when President Obama personally dropped a plan, engineered by his counsel, Greg Craig, to bring two cleared prisoners from Guantánamo to settle on the US mainland (as ordered by a District Court judge in October 2008), the struggle to close Guantánamo has become noticeably harder, as European countries, pushed to take cleared prisoners themselves, have found themselves unable to resist asking why they are being obliged to clean up America’s mess when America is doing nothing itself.

Being cleared for release means nothing if you remain locked up in Guantánamo forever, and unless the administration has some significant plan up its sleeve, the future of these men is bleak. Since the announcement of the number of cleared prisoners two months ago, it is almost certain that many of the additional prisoners cleared prisoners are Yemenis (as around 95 of the remaining 211 prisoners are Yemeni), so perhaps it is worth reading something into Robert Gates’ refusal to back up the President’s recent admission that Guantánamo will not close by the self-imposed deadline of January 22, 2010, when he told the Senate hearing last Thursday that the President “has every intention of doing this and we will,” and explained, “Principally the logistics of it have proven to be more complicated (than expected).”

A deal on the repatriation of the Yemenis — of whom, I suspect, between 50 and 60 have now been cleared for release — would certainly help fulfill Barack Obama’s ailing promise, and may have been hinted at by Robert Gates. However, I still think that any decent person’s demand — that men cleared for release after their long ordeal should not be held one minute longer than necessary — will not be achieved until the people of the United States accept that it is not enough for Belgium, Bermuda, France, Hungary, Ireland, Palau and Portugal to take the odd cleared prisoner as a favor to President Obama, and for the US to do nothing.

As a result, Congress must be persuaded to drop its opposition to the release of any cleared prisoner into the US (which has complicated the closure of Guantánamo still further), and the American people need to follow the example of the town of Amherst, Massachusetts, which recently voted to accept two prisoners from Guantánamo, and also to tell Congress to drop its ban. The principle is quite simple, and generally well understood, I believe: if you break it, you fix it.

Note: As of December 20, 2009, the number of cleared prisoners stood at 103, because Fouad al-Rabiah, a Kuwaiti who won his habeas corpus petition, was released, as were six Yemenis, four Afghans and two Somalis, who were cleared for release by the Obama administration’s Task Force.

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

As published exclusively on the website of the Future of Freedom Foundation (as “Cleared for Release and Still in Limbo”). Cross-posted on The Public Record.