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

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

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

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

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

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

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

Those already tried are:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Revolution Interview with Investigative Journalist Andy Worthington
The Outrage of the Bush-Obama Military Commissions

According to recent news reports, the Obama administration is getting ready to conduct a new series of Military Commissions trials for a number of prisoners being held at the U.S. torture camp at Guantánamo. These Military Commissions, begun under George W. Bush, basically deprive defendants of all rights, and have been part of the whole new level of fascistic repressive measures since 9/11. Revolution talked about the background and the new developments around the Military Commissions with Andy Worthington, 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 U.S.). His website is here.

The Revolution Interview is a special feature of Revolution to acquaint our readers with the views of significant figures in art, theater, music and literature, science, sports and politics. The views expressed by those we interview are, of course, their own, and they are not responsible for the views published elsewhere in our paper.

Revolution: Before we get into the new developments, can you give us some background on the Military Commissions — what they are, their beginnings?

Andy Worthington: What they are is a specific type of military trial that has been used throughout American history. It was most recently used in the Second World War, in the cases of certain Nazi saboteurs. And when the Bush administration was fishing around for new ways to deal with people it had captured, in the early days of the “war on terror,” then it came across the Military Commissions, specifically as they were used in the Second World War. These were established through a “military order,” which was passed with virtually no oversight from anyone, signed by President Bush on November 13, 2001.

The background story to that is that it was essentially hustled through a couple of departments in the White House without anybody really seeing what was going on. Former U.S. Secretary of State Colin Powell later said that he’d not even heard about this, that he saw it on TV. This was essentially the document that established the notion of “enemy combatants” and said these guys can only be tried by Military Commissions, and evidence that would not be permitted in normal courts will be able to be used. I think what was obvious from that document to people who were looking closely was that it was an attempt to set up show trials that would be able to draw on evidence derived from torture and then execute people the administration said were guilty.

It then took quite a while for the administration to be able to put the trials in place. Almost before anything had gotten going, in 2005, a number of prosecutors resigned because they realized this was a bent system. From 2004 to 2006, 10 people were charged. There were various pretrial hearings that were held, but they were all shambolic. Pretty much everything that has ever taken place in a Military Commission hearing as part of the “war on terror” has been shambolic because the rules are so ill-defined, there are so many holes in all the procedures. And this went on until June 2006 when the Supreme Court ruled that the military commissions were illegal. They actually ruled that they contravened the Military Code of Justice and the Geneva Conventions.

So having been thrown out, the Bush administration then went to Congress to revise them. And in that amended form, they have had a second phase of activity. I think it’s quite important to note that at this point, Congress invented war crimes that were tryable by Military Commission. So although the initial idea of having Military Commissions for alleged terror suspects came from Dick Cheney and his chief legal advisor, David Addington, when it was revised by Congress, Congress specifically attempted to make war crimes out of crimes that are not recognized as war crimes, such as “murder by an unprivileged belligerent.”

So at the start of 2007 the Military Commissions were back. From then until the end of the Bush administration, they again stumbled on from one disaster to another. Twenty-eight men were put forward for trials by Military Commission, but only three ever went to trial. The first of those cases was David Hicks, the Australian, and a plea deal had been arranged between Dick Cheney and Prime Minister John Howard of Australia. Hicks had been picked up on the radar in Australia — there was a movement around the injustices against him. So there was a deal that was struck that was supposed to help get John Howard reelected. It failed. But Hicks was “encouraged” to file for a plea deal, whereby he spent another six months in prison back in Australia, in exchange for admitting to “material support for terrorism” — which is one of the key ingredients in federal court terrorism prosecutions, but is one of the invented “war crimes.” It’s not traditionally been viewed as a war crime.

The second case in the summer of 2007 was Salim Hamdan, who was one of a number of drivers who worked for Osama bin Laden, a Yemeni who had taken the job for money. The military jury in his case threw out the conspiracy charge, correctly understanding that one of the many guys who drove bin Laden around wasn’t privy to any secrets, although they did find him guilty of “material support for terrorism.” The jury gave him a five and a half year sentence but the judge back-dated that to the time of his capture. He was a free man five months after that.

The only other case under Bush — the week before the presidential election in November 2008 — was Ali Hamza al-Bahlul, a Yemeni who had made a propaganda video for al-Qaida, which he admitted to. Al-Bahlul refused to take part in the process at all. As a result he was not represented legally, because lawyers are not allowed to represent an unwilling client, and even though the military was pushing his lawyer to do so, he refused to take part. So they had a trial for a week, which was a completely one-sided trial because he refused to mount a defense at all. And at the end of that, almost on the eve of the presidential elections, he was found guilty and sentenced to life — in Guantánamo, which he is serving. So that is the background under Bush.

Revolution: Stepping back a little, looking at the Military Commissions under Bush, wasn’t this a significant departure from the legal “norms” in the U.S.? In the history of the U.S., there have been many instances of politically motivated cases and injustices, especially involving people who those in power see as threats, or oppressed people on a daily basis. But still, the Military Commissions represented a major leap in repressive measures — in throwing out basic rights, allowing torture, and so on.

Andy Worthington: Well when they were brought back by Congress, there was an attempt by Congress to say that the use of torture wouldn’t be allowed. The fundamental problem with the Military Commissions is that terrorism is a crime, but the Bush administration, and now the Obama administration, were trying to prosecute people in military settings for crimes, which they were trying to turn into war crimes. And that’s the fundamental misconception about the whole thing, why it doesn’t fit together.

Revolution: Barack Obama campaigned with pledges to shut Guantánamo down and stop the Military Commissions, among other promises. So what has happened under Obama?

Andy Worthington: He suspended the Military Commissions on his first day in office in order to review them, and on his second day in office he also issued executive orders that promised to close Guantánamo within a year, upheld the absolute ban on torture, and promised humane interrogations of detainees in the future. However, in May 2009, he delivered a major national security speech at the National Archives, where he put Military Commissions back on the table. He also put the indefinite detention without charge or trial of some prisoners back on the table as well. And all the dreams and hopes that he was going to either charge or release prisoners, and if charged, try them in federal courts began to unravel at that point. So that’s a simple answer, that on May 2009 he was told, or persuaded to change his mind.

Revolution: So what about these recent reports that Obama is planning to ramp up the Military Commissions again?

Andy Worthington: What’s happened under President Obama is that very little was happening for the first 18 months — there were hearings still going on, but the plan was that the administration wanted to have both federal court trials and Military Commissions. In May 2009 the administration moved one man from Guantánamo, Ahmed Khalfan Ghailani, to the U.S. mainland (and he was sentenced to life without parole in federal court last week). However, in November 2009, when U.S. Attorney General Eric Holder announced that Khalid Sheikh Mohammed and four other men accused in involvement in the 9/11 attacks would be brought to the U.S. mainland to face trial, the backlash against that meant that the administration shelved its plan.

That refusal to follow through on its initial statement meant that it gave Congress time to pass a law prohibiting it, which is what lawmakers did just before Christmas, when they passed legislation preventing President Obama from bringing prisoners to the U.S. mainland to face trial. So Obama’s only option is Military Commissions, but their history, under Obama, has not been better than it was under Bush. Last summer, when I think they had been hoping that federal courts and Military Commissions would be coexisting, they reached the trial phase of Ibrahim al-Qosi, another peripheral figure in the al-Qaida picture, really, a man who from what I can see sometimes was a cook in a compound that was sometimes used by Osama bin Laden. So, you know, pretty tangential to everything. When the administration was faced with the prospect of actually going ahead with a trial, it pushed for a plea deal instead. We don’t officially know how long he’s going to serve but the rumor is that he’ll serve two more years and then go back to Sudan.

And in autumn there was the trial of Omar Khadr, the former child prisoner from Canada, who also accepted a plea deal. And he’s apparently serving eight years, one more year in Guantánamo and seven in Canada. That was a total disgrace because he was a child when he was captured after a battle in Afghanistan.

Revolution: He was also tortured in Bagram prison in Afghanistan and threatened with rape…

Andy Worthington: Absolutely. Was tortured. Was never treated as a juvenile prisoner should be treated according to the UN Convention on the rights of a child in war time—which the U.S. signed after his capture, signed in January 2003, and which require the rehabilitation rather than punishment of juveniles who are under 18 when the alleged crime took place. Plus Khadr had to confess to invented war crimes, that he was an “alien unprivileged enemy belligerent” who was not allowed to be in a combat situation with U.S. forces. It was “illegal” for him to do so. That’s just a complete disgrace. But, unperturbed [laughs] the administration has now announced — it hasn’t been officially announced, but it has been indicated that they’re revving up to hold more trials by Military Commission at Guantánamo. There are four guys we’ve been told about, who are likely the ones who are going to be put on trial.

Revolution: One of them is Abd al-Rahim al-Nashiri, and it has been openly acknowledged that he is one of the detainees that the U.S. tortured with waterboarding. And one of the outrageous things about the Military Commissions is that so-called evidence obtained under torture and hearsay evidence can be used against the defendant, who has no way of challenging them.

Andy Worthington: Yeah, absolutely. And the administration has tried to fudge this. When in November 2009 Holder announced the apparently imminent prosecution of Khalid Sheikh Mohammed and four other men, he also said that the Military Commissions are officially back, and here are five guys that we’re going to put on trial, and he tried to distinguish between the two systems by saying Military Commissions are more connected with activities that took place in the military context, claiming that, in al-Nashiri’s case, which allegedly involved the attack on the USS Cole [in 2000], was a military target, whereas they were saying 9/11 was a civilian target. I don’t think that really stands up to scrutiny because as you’ve indicated, what lies behind this are issues of evidence. And what they’ve actually done is decide what they think they can get away with in whatever forum. And it’s part of the reason that, the more confident they are, then they’ll go for a federal court trial, where torture evidence is definitely excluded, and hearsay evidence isn’t going to wash. They’ve got more leeway in the Military Commissions.

And of course, beyond the federal courts and the Military Commissions, there is a third category of people — those they want to hold indefinitely without charge or trial, because they have said: we think these people are too dangerous, but we don’t even have the evidence that would stand up in a Military Commission — i.e., they really don’t have anything resembling evidence at all. So it would all have to be hearsay. And yes, it’s troubling that they rely on hearsay because it’s so much tied in with the torture program, essentially. Not just the “high-value detainee” program and extraordinary renditions and CIA secret prisons where torture was clearly central, but the fact is that torture permeates so much of the way in which the men were held and interrogated in Afghanistan before they went to Guantánamo. So in Kandahar and primarily in Bagram, as in Guantánamo itself, where there was a regime in place, certainly for two years, that was a version of the torture program that had been used by the CIA in their secret prisons. It didn’t involve waterboarding, but it did involve torture.

Revolution: How many prisoners are there currently at Guantánamo, and what are their conditions of imprisonment?

Andy Worthington: There are 173 men being held at Guantánamo. In general, conditions improved under Obama. This doesn’t apply to all of them. There are still some men held in solitary. In general though, they have been allowed to mingle more and to have some recreational facilities. Although recently we’ve heard from prisoners, who have unclassified phone calls with their lawyers, that there’s something going on there, that they’re actually moving people back into spending more time in isolation. But there has been in general an improvement, which I think has indicated that they’re in it for the long haul.

After all, Guantánamo’s purpose as an interrogation center is long gone. That was the whole point, really, about what the Bush administration wanted, was to hold people outside the law, so that it could do whatever it wanted to do to them, to get what it described as “actionable intelligence.” It wasn’t concerned with what the hell it was going to do with these people, and it wasn’t concerned with prosecution. It was about intelligence. And sadly what happened was that when people didn’t tell them what they thought they should be telling them, whether that was because they were withholding it or they were completely wrong people, then they introduced torture, having fooled themselves into thinking that torture was going to be a good way of getting the truth. But it doesn’t necessarily get you anything even resembling the truth, or you can’t separate the truth from fiction. You end up accusing someone falsely, kicking so many doors down in the middle of the night, and dragging off to dungeons other people whose name was divulged because someone’s been tortured, not because they did anything. That web of where torture leads is absolutely horrible.

Revolution: There are still U.S. prisons, in Afghanistan for example, where people are still being held in conditions of torture…

Andy Worthington: There’s the prison in Bagram. There are persistent stories of a secret prison that is part of Bagram. And I think it’s very credible that, although there has been in general an effort to learn from a lot of the mistakes of the Bush administration, operationally there are certainly people who find it useful to have some leeway in how people can be treated. And I think more fundamentally the problem that is demonstrated by Afghanistan is that Bagram, which is the main prison for the ongoing U.S. operations in Afghanistan, is not a place that has been returned to the rule of the Geneva Conventions. It’s a place where people are held for a significant amount of time without any adequate screening to determine whether they should be there and then are given a review which actually resembles the review process at Guantánamo, which the Supreme Court found inadequate in 2008. The military is not operating according to the Geneva Conventions. That’s the kind of major change that happened, I think, that hasn’t been addressed.

The more disturbing aspect is that around the edges of this amended military detention scenario are people that are kept off the books for a while completely so that they can be leaned on a bit. We’re dealing definitely with torture. All the stories demonstrate that we’re dealing with torture. The magic word for most people with torture is: were they waterboarded. Well that’s not the issue here, really. It’s people that have been subjected to prolonged solitary confinement and sleep deprivation, for example. That’s a form of torture.

Revolution: Are there any other points about these reports of new Military Commission hearings we should be aware of?

Andy Worthington: What we know is that the administration initiated a Task Force when Obama came into office. They spent a year going through all the Guantánamo cases, deciding what to do with them. This involved officials and lawyers from government departments and agencies — I describe them as pretty sober set of career officials — who carefully went through what information they could about the men held to decide what should be done with them. Now I have a problem with that because there’s already a legal process underway, which is their habeas corpus decisions. President Obama had set up essentially a kind of executive parallel review process. So I have a problem with that anyway, but this is their basis for deciding what to do with the men held.

And they said, of the 173 men held — and bear in mind three of the ones are held because of the results of their Military Commissions — they want to put 33 men on trial, they want to hold 48 indefinitely without charge or trial, and the rest ought to be released. And so clearly, there’s a big problem — 89 men recommended for release who are still held. Another big problem — 48 men held indefinitely without charge or trial because any evidence against them you can’t use, so it’s not evidence. And that’s a fundamental problem. Thirty-three men are supposed to be put on trial. So are they going to give up on holding federal court trials? Are they possibly going to, as has been suggested, use Justice Department funds to bypass Congressional ban on bringing prisoners to the U.S. mainland using the Defense budget and put them on trial?

The trial of Ghailani, which resulted in a jury convicting him of only one count out of 285, was portrayed by the supporters of the Military Commissions as a failure. I mean, if you had not been paying attention, you could think that the man was acquitted. He wasn’t. That one charge carried a maximum of life without parole. And last week the judge sentenced him to life without parole. That also proved to Obama’s critics that the federal courts are a safe venue for prosecuting terrorists. I think it’s easy to say that actually it also demonstrated federal court trials are too successful because they deliver punitive sentences. Because if you survey the whole landscape of terrorism-related offenses prosecuted in federal courts, there are very, very worrying sentences being handed down for people doing virtually nothing, receiving enormous sentences.

But if they want to proceed with these trials, of Khalid Sheikh Mohammed, for example, and the four other men in a venue that will be internationally recognized, if they want to attempt to draw a line under the whole of this “war on terror,” which started because of 9/11, and here are the guys who are supposed to have done the whole thing — are they going to do that? Or are they going to accept that, no it’s too unpopular to do that, just leave them in Guantánamo, and we’ll start picking away at people, one by one, and put them on trial in Military Commissions and see if that works? I don’t quite know which course of action they’re going to take. But first of all they’re going to have to get through the trials of the men they’ve put forward.

We’ve spoken about al-Nashiri. But another of the three other men they’ve put forward — Ahmed al-Darbi, picked up in Azerbaijan — seems also to have a history that’s replete with torture, particularly in Bagram, probably in the secret part of Bagram that was running under the Bush administration. One of them, to me, is completely pointless — a minor insurgent, if anything, in Afghanistan, an Afghan named Obaidullah. What on earth is going on here, with an attempt to prosecute him? We’ll have to see how it goes. My feeling is that they will carry on trying to secure plea deals in these Military Commission trials, as it’s the only venue where they can do trials at all at the moment. And it may be that, if you look on average at how the Commissions have worked out, they’re actually working out better for the prisoners in terms of getting out of Guantánamo than any other way.

Revolution: Aside from the individual cases of these prisoners, there is the overall moral and legal implications of the continuing existence of Guantánamo, of indefinite detentions, and so on.

Andy Worthington: I don’t know how it’s possible to shift the discussion to where it should be. But all of this, whatever Obama has tried to do the last few years, has really failed to shift the structure of detention, from what was so falsely established by the Bush administration. This is a new kind of thing in history. We’re not dealing with soldiers. We’re not dealing with criminals. We’re dealing with a new category of human beings who don’t deserve to have any rights, the “enemy combatants.” Now Obama dropped that terminology. But when they want to put the people in Guantánamo on trial in Military Commissions as we saw with Omar Khadr, they have to be declared by a judge to be “alien unprivileged enemy belligerents,” which they think is more in spirit with the Geneva Conventions. But again, it’s a legacy of this fundamental problem that hasn’t been addressed, which is, there is not a third category of prisoner, there are only two types of people that you hold. They are either criminal suspects and you put them on trial — speedily, I believe, is an important aspect of that — or they’re prisoners of war, they’re soldiers who you’ve captured in wartime, whether they’re wearing a regular uniform or not, and that’s it.

There’s an enormous resistance to going back to the world that existed before 9/11 in that sense. The Bush position is ferociously defended by numerous Republicans now. But it’s also essentially, fundamentally defended by the Obama administration as well, however much they may try to dance around that — and if challenged, they would probably talk about how this isn’t about projecting into the future, this is a legacy problem they’re trying to deal with, and under the terms of this legacy problem, that detention situation exists. They could redefine people as prisoners of war protected by the Geneva Convention. Then we could all be debating about how long the war lasts and how long it’s appropriate to hold these men.

So it’s a disastrous confusion, really, the position we’re in now, with all these different factions fighting their own corners, and the people in Guantánamo ultimately being the losers. If they’re cleared for release, they’re not going anywhere. If they were recommended to be put forward for trial, then one avenue for trial has been cut off, the other one doesn’t look promising. Then behind that are men to be held indefinitely without charge or trial, which was exactly what the Bush administration intended in the first place. And however that’s dressed up, that’s not fundamentally any different either.

I hope that at some point we will be able to push the debate onto these issues of scrapping the whole terminology that underpins detentions in the “war on terror” and get back to an understanding that people are either criminals or soldiers, and that’s the end of the story.

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, 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.

This year the President’s bitter surprise for the prisoners (which has encouraged a widespread peaceful protest at the prison, as reported here) was two-fold. The first was his failure to veto a military spending bill passed by Congress, which contained cynical and unconstitutional provisions preventing the transfer of any prisoner to the US mainland, in which lawmakers also demanded the power to prevent the release of prisoners to countries regarded as dangerous.

While these were evidently unacceptable assaults on Presidential authority, dashing the administration’s hopes of holding federal court trials for any of the remaining 173 prisoners and confirming the intent of Congress to enshrine the Yemeni moratorium in legislation, and also to prevent any prisoners from being released to other countries including Afghanistan, Obama refused to veto the bill, feebly claiming that he would try to negotiate with Congress, but thereby conceding that there was no way that the prison would close in the foreseeable future — or, very probably, in the rest of his term in office.

The Return of the Military Commissions

The second bitter surprise for the prisoners was the announcement last week, first mentioned by the New York Times, that, although federal court trials have effectively been suspended, specifically derailing the administration’s stated intention to prosecute Khalid Sheikh Mohammed and four other men accused of involvement in the 9/11 attacks in federal court, the administration is preparing to push ahead instead with trials by Military Commission for at least some of the 33 men recommended for trials by Obama’s Task Force.

This decision is particularly disappointing because it hands victory to the most ideologically misguided Republicans, who like the idea of Military Commissions because they reinforce their false notion of terrorist suspects as “warriors” in the Bush administration’s “War on Terror,” while enraging many of Obama’s own supporters, who are opposed to trials by Military Commission because they represent a second-tier system of justice, inferior to federal court trials, and, in particular, because they contain “war crimes” specifically invented by Congress.

As Lt. Col. David Frakt, a law professor and the military defense attorney for two prisoners at Guantánamo, explained in Congressional testimony in summer 2009:

If one were to review the charges brought against all of the approximately 25 defendants charged [under President Bush] in the military commissions, as I have, one would conclude that 99% of them do not involve traditionally recognized war crimes. Rather, virtually all the defendants are charged with non-war crimes, primarily criminal conspiracy, terrorism and material support to terrorism, all of which are properly crimes under federal criminal law, but not the laws of war.

The decision to revive the Commissions is also disappointing because, as ProPublica reported in a follow-up to the Times‘ story, last August, when “President Obama’s national security advisers, including Secretary of Defense Robert Gates, Attorney General Eric Holder and Secretary of State Hillary Clinton, met in the White House situation room to decide whether and how to go forward with trials for some Guantánamo prisoners,” they reportedly “left the White House that August day committed to moving forward simultaneously with prosecutions in federal court and military commissions.” As ProPublica stated explicitly, “No military trials would be held anywhere unless trials in federal courtrooms were held at the same time.”

The only glimmer of hope, as ProPublica also reported, is that:

[S]ome experts have suggested that the restrictions [on moving prisoners to the US mainland] affect only the Pentagon. Justice Department funds could still be used to move prisoners to the United States. If that is the White House view, it will be known only when a prisoner is moved to the United States for trial. And only then will it be clear whether the White House policy to move simultaneously on prosecutions in federal court and military commissions still holds.

However, given Obama’s history of bowing to Republican pressure on almost everything to do with Guantánamo, it strikes me as highly unlikely that he would willingly invite an avalanche of criticism to descend on him by stealthily moving prisoners to face trial to the US using Justice Department funds.

If that were the case, he would already have robustly defended federal court trials, whereas the sad truth is that, when tested, he withdrew from the fray. That test came in October and November, during the trial and conviction of Ahmed Khalfan Ghailani, the only man to be moved by the Obama administration from Guantánamo to the US mainland to face a federal court trial (a move that took place in May 2009, before Congress decided to do all it could to usurp the President’s powers). When the jury in Ghailani’s case convicted him on one count of conspiracy, in connection with the bombing of the US embassy in Dar-es-Salaam, Tanzania in August 1998, and cleared him of 284 other charges, Obama refused to speak up to defend the court system, allowing his distorted critics to behave as though Ghailani had somehow beaten the system, even though he faced a minimum prison sentence of 20 years, and, when his sentence was delivered today, received a life sentence without parole.

The sad history of the Military Commissions

With the Commissions back in play, therefore, the only hope for those who believe, correctly, that federal courts are the only legitimate venue for trying offenses related to terrorism, is that the system first dragged from the grave by Dick Cheney in November 2001, and revived by Congress in the fall of 2006, and again in 2009 (under Obama), after the Supreme Court ruled in June 2006 that Cheney’s version violated both the Geneva Conventions and the Uniform Code of Military Justice, will be as much of a failure as it has on all its other previous outings — the three convictions under Bush, and the two under Obama:

• David Hicks, an Australian, who, in March 2007, accepted a plea deal and was a free man nine months later;
• Salim Hamdan, a Yemeni, and one of several drivers for Osama bin Laden, who was cleared of conspiracy charges by his military jury, and was a free man five months after being convicted and sentenced for providing material support to terrorism in August 2008;
• Ali Hamza al-Bahlul, a Yemeni who made a promotional video for al-Qaeda, and received a life sentence in November 2008 after a one-sided trial in which he refused to mount a defense;
• Ibrahim al-Qosi, from Sudan, a sometime chef for al-Qaeda members in a compound used by Osama bin Laden, who accepted a plea deal in July last year, and is expected to be freed in July 2012; and
• Omar Khadr, a Canadian, and a former child prisoner, who was put forward for a trial by Obama despite his former status as a child (which should have guaranteed that he was rehabilitated rather than prosecuted), and who agreed to a plea deal in October, which involves him serving one more year in Guantánamo, and then being repatriated to serve seven more years in Canada.

Of these, the trial of Omar Khadr ought to have been the biggest humiliation for the Obama administration, and a sure sign of troubles to come, as his guilty plea involved the spurious war crimes invented by Congress, and it was both depressing and shameful to watch as Obama presided over a system in which Khadr was obliged to accept that he was an “alien unprivileged enemy belligerent,” whose participation in — or presence at — the firefight in July 2002 that led to his capture was illegal.

The men scheduled to face trials by Military Commission

As the New York Times explained last week, the men scheduled to face trials include three of the five men mentioned by Attorney General Eric Holder on November 13, 2009, on the same day that he announced the federal court trial of Khalid Sheikh Mohammed and his alleged 9/11 co-conspirators. With al-Qosi and Khadr dealt with, the remaining three are Noor Uthman Mohammed, Ahmed Mohammed al-Darbi and Abd al-Rahim al-Nashiri. A fourth man is Obaidaullah, an Afghan. All of these men (like al-Qosi and Khadr) are hold-overs from the Bush-era Commissions, when 29 men in total were charged, but only three trials took place, as mentioned above.

Noor Uthman Muhammed

In the case of Noor Uthman Muhammed, accused of being the deputy emir of a training camp in Afghanistan, the main problems were summarized in a report from his most recent hearing at Guantánamo in September last year, by Raha Wala, a Georgetown Fellow in Law and Security, who attended the hearing on behalf of Human Rights First, and elaborated on some of the failures of the Commissions that I mentioned above. Wala wrote:

One reason Noor’s case is a bad fit for a war crimes prosecution is that it’s unclear whether a military commission can even exert jurisdiction over Noor for crimes that the government says he committed. Most of the criminal acts Noor allegedly committed took place from the mid-1990′s to 2000, purportedly before the United States was at war with anyone. Yet the military commissions were originally created in response to the September 11th terrorist attacks to try individuals for war crimes, raising questions about whether the military commission even has jurisdiction to hear Noor’s case. The crimes Noor allegedly committed — material support of terrorism and conspiracy — are not traditional law of war violations typically tried in military commissions. Moreover, attempts by Congress to codify material support and conspiracy as war crimes may very well be seen as imposing ex post facto punishment, with military commissions serving as a venue for trying individuals like Noor for “war crimes” that simply didn’t exist at the time these alleged unlawful acts took place.

Similarly, Noor must be considered an “unprivileged enemy belligerent” for the military commission to assert jurisdiction over him. This means that the prosecution needs to show that Noor was unlawfully taking part in hostilities during an armed conflict. Yet, as was mentioned above, the United States was not at war in the 90′s during Noor’s alleged crimes. And Noor denies that he was affiliated with any armed forces, although the US government claims he was providing support for a Taliban training camp [actually the Khaldan camp, which was independent of both the Taliban and al-Qaeda]. Even if the US government’s accusations are accurate, it’s not clear that the Taliban was involved in any armed conflict during the time of Noor’s alleged unlawful acts either.

Other problems for the government are that Muhammed’s case relates to two others that the administration ought be extremely wary of publicizing: that of Abu Zubaydah, the supposed “high-value detainee” for whom the CIA torture program was first developed, who, it turned out, was not a significant figure in al-Qaeda at all, and that of Ibn al-Shaykh al-Libi, the emir of Khaldan, who was flown to Egypt by the CIA, tortured until he confessed to non-existent links between Saddam Hussein and al-Qaeda, which were used to justify the invasion of Iraq in March 2003, and later returned to Libya, where he died in mysterious circumstances in May 2009. Despite this, in September, prosecutors in Muhammed’s case declared their intention to use Abu Zubaydah’s diaries as evidence when his case comes to trial.

Ahmed Mohammed al-Darbi

In the case of Ahmed Mohammed al-Darbi, a Saudi seized in Azerbaijan in June 2002 and rendered to US custody in Bagram, Afghanistan, before being sent to Guantánamo, the main problem for the government is that his case is tainted with torture. He is accused of plotting to attack a ship in the Strait Of Hormuz, meeting Osama bin Laden and attending a training camp in Afghanistan, but at a hearing in September 2009, his civilian lawyer, Ramzi Kassem, urged that all of the 119 statements that al-Darbi made to interrogators should be ruled out, because they were obtained through the use of torture and abuse, including beatings, threats of rape, sensory deprivation, sleep deprivation and sexual humiliation, both at Bagram, where al-Darbi was held for eight months, and at Guantánamo (a full statement by al-Darbi is available here).

Abd al-Rahim al-Nashiri

The most troubling case is that of Abd al-Rahim al-Nashiri, one of 14 “high-value detainees” transferred to Guantánamo in September 2006, after being held in secret CIA prisons for nearly four years. I have written about the problems with al-Nashiri’s case since he was originally charged in June 2008, and these were summarized last week, when the New York Times noted that:

[His case] would attract global attention because he was previously held in secret Central Intelligence Agency prisons and is one of three detainees known to have been subjected to the drowning technique known as waterboarding.

Lt. Cmdr. Stephen Reyes of the Navy, a military lawyer assigned to defend Mr. Nashiri, declined to comment on any movement in the case. But he noted that two of Mr. Nashiri’s alleged co-conspirators were indicted in federal civilian court in 2003, and he made clear that the defense would highlight Mr. Nashiri’s treatment in CIA custody.

“Nashiri is being prosecuted at the commissions because of the torture issue,” Mr. Reyes said. “Otherwise he would be indicted in New York along with his alleged co-conspirators.”

The Times might also have mentioned that, shortly after al-Nashiri’s capture, he was threatened with a gun and a power drill in a secret CIA prison in Thailand, and was then moved to Poland, where, in September last year, he was granted “victim” status in an ongoing investigation into Polish complicity in the establishment of a secret CIA prison at Stare Kiejkuty, near Szymany.

Obaidullah

For the last of the men, Obaidullah (also spelled Obaydullah), the decision to proceed with a trial by Military Commission demonstrates how, as under President Bush, the Commissions’ ill-conceived dragnet not only includes alleged terrorists, but also minor figures in the Afghan insurgency, whose connection to terrorism is only justifiable under the absurd terms of the “War on Terror,” which treats terrorists and soldiers equally, and attempts to criminalize soldiers, while denying criminal trials for terrorists.

A year ago, when Eric Holder announced that Obaidaullah had been charged, I revisited an article I wrote when he was first charged under President Bush in September 2008, noting not only that he had plausible compliants that he was tortured by US forces in Bagram, but also that he was

charged with “conspiracy” and “providing material support to terrorism,” based on the thinnest set of allegations to date: essentially, a single claim that, “[o]n or about 22 July 2002,” he “stored and concealed anti-tank mines, other explosive devices, and related equipment”; that he “concealed on his person a notebook describing how to wire and detonate explosive devices”; and that he “knew or intended” that his “material support and resources were to be used in preparation for and in carrying out a terrorist attack.”

As I also explained:

It doesn’t take much reflection on these charges to realize that it is a depressingly clear example of the US administration’s disturbing, post-9/11 redefinition of “war crimes,” which apparently allows the US authorities to claim that they can equate minor acts of insurgency committed by a citizen of an occupied nation with terrorism.

In conclusion, while the charges against Obaidullah remain incomprehensible, there is no reason to suppose that the invented war crimes misapplied to the other men will ensure that their trials by Military Commission — also dogged by evidence of torture — will secure credible convictions, or be regarded as legitimate outside the United States.

January really is the cruelest month, at least for those still languishing in the Pentagon’s prison at Guantánamo.

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, and available on DVD here), my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.

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

In fact, after deliberating for five days, the jury found him guilty on one count of conspiracy to destroy US property and buildings, which carries a mandatory 20-year sentence, although the judge in his case, Judge Lewis Kaplan, can decide that a life sentence is appropriate.

Why, then, did Representative Peter King (R-NY), who is poised to become the chairman of the House Homeland Security Committee in January, exclaim, “This is a tragic wake-up call to the Obama Administration to immediately abandon its ill-advised plan to try Guantánamo terrorists” in federal civilian courts?

The reason is naked ideology, of a very damaging kind, as Rep. King revealed in the comment that followed. “We must treat them as wartime enemies,” he said, “and try them in military commissions at Guantánamo.”

For Rep. King and his fellow Republicans, who were queuing up to damn President Obama for his imperceptible failure, the naked truth is that they would have been even more dissatisfied if the jury had convicted Ghailani on the other 284 counts on which they found him not guilty, as it would have made it more difficult for them to attempt to justify their obsession with treating Ghailani — and all the other prisoners in Guantánamo — as “warriors” in the “War on Terror” launched by the Bush administration, for whom federal court trials are ideologically unsuitable.

Such is the blinkered obsession of these critics that they actively want information derived from torture to be used in the trials of alleged terrorists, and they blame Judge Kaplan for upholding the law by excluding from the trial the government’s alleged “star witness,” a Tanzanian named Hussein Abebe, whose name was revealed by Ghailani while he was being subjected to torture in a secret prison run by the CIA — part of a network of secret prisons in which he was held for two years and two months, after his capture in Pakistan in July 2004, until his transfer to Guantánamo, with 13 other alleged “high-value detainees,” in September 2006.

To these critics, it is irrelevant that information derived through the use of torture was excluded by Judge Kaplan because such information can never be used in federal court — and because the use of torture is a crime under domestic US law — just as it is irrelevant that Hussein Abebe’s testimony may also have been suspicious, as Marcy Wheeler pointed out in two articles on FireDogLake.

Nor, bizarrely, do they care that experts with deeper knowledge of the Commissions have pointed out that a military judge in a trial by Military Commission would also have excluded evidence derived through the use of torture, or that the Commissions themselves have a dismal record when it comes to successful prosecutions, having secured just five verdicts since their revival nine years ago: three through plea deals (in the cases of David Hicks, Ibrahim al-Qosi and Omar Khadr); one, in the case of Salim Hamdan, a driver for Osama bin Laden, after a trial in which the military jury threw out a charge of conspiracy; and another, in the case of Ali Hamza al-Bahlul, who produced a propaganda video for al-Qaeda, after a one-sided trial in which al-Bahlul refused to mount a defense.

With the exception of al-Bahlul, who is serving a life sentence (although this is being appealed), all these supposed victories have perished under scrutiny: in 2007, Hicks was freed almost immediately, to serve just seven months in Australia; Hamdan received a sentence of five and a half years, but the judge decided it included time already served, and he was a free man after just five months; al-Qosi, a sometime cook for al-Qaeda, is expected to serve two years; and Omar Khadr’s plea deal means he will be freed from Guantánamo in a year, with seven years ahead of him in a Canadian prison.

Also irrelevant to these advocates of torture and bent trials is the fact that federal courts have an enormously successful track record of prosecuting terrorists, and that the fate of Ghailani’s alleged co-conspirators in the 1998 bombings provides a salutary lesson regarding these successes, providing a ringing endorsement of federal court trials for terrorists, and — along the way — also providing a damning repudiation of the extralegal novelties of the “War on Terror.” Rather than being diverted into a network of secret prisons run by the CIA, where torture was making an ill-advised renaissance, Mohamed Rashed Daoud al-’Owhali, Khalfan Khamis Mohamed, Mohamed Sadeek Odeh and Wadih el-Hage were interrogated by FBI officials without the use of torture, were successfully convicted in a federal court in New York in May 2001, and were sentenced to life without parole in October 2001 — when the “War on Terror” had already begun.

All of the above is supposedly irrelevant to critics of the verdict in Ghailani’s trials because these cheerleaders for the Commissions — and for the use of information derived through the use of torture — want to ignore reality and return to the world envisaged by former Vice President Dick Cheney and his legal counsel David Addington in November 2001, when they first revived the Military Commissions, intending that they would be able to launder information derived through torture, and sentence supposed terrorist suspects to death without anything remotely resembling due process.

This is the system which, although still a second-rate system of justice, reserved for foreigners regarded as terrorist suspects, or as “alien unprivileged enemy combatants,” who are not allowed to raise arms against US forces under any circumstances, has been amended over the years, after the Supreme Court ruled it illegal in June 2006, demolishing Cheney’s dream so that information derived through the use of torture is banned, as it is in federal court trials. As a result, the only essential difference between the Commissions and federal court trials is that the military judges in the former can use their discretion to decide whether or not to allow the use of information that may have been derived through coercion rather than torture.

This may have made a difference in Ghailani’s case, but it seems unlikely, given the Commissions’ track record, that it would necessarily have led to a harsher sentence than the one Ghailani will receive after his federal court trial. In addition, it is worth considering that Ghailani’s trial took place with barely a mention of his treatment in secret CIA prisons or in Guantanamo, when the precedents from the Commissions indicate that military defense lawyers may have fought more tenaciously to raise it as an issue.

Once it becomes apparent that critics of the verdict in Ghailani’s trial are actually seeking a return to the lawless fantasy land envisaged by Dick Cheney and David Addington, and believe — contrary to the evidence — that US law is soft and useless, it also becomes apparent that the silence of President Obama and Attorney General Eric Holder in response to these complaints is deeply troubling.

The Obama administration needs to put down those who are insulting US law through the prism of their own warped ideology, or there is no telling where the rot will stop. Fortunately, for now, few critics have rallied behind a small group of other critics — Benjamin Wittes of the Brookings Institution, Jack Goldsmith, former Assistant Attorney General in the Justice Department’s Office of Legal Counsel, and law professor Robert Chesney — who have taken another troubling unconstitutional line, suggesting that Congress should enact legislation to hold terror suspects indefinitely without even bothering to think about putting them on trial.

However, without decisive action in support of US law and the Constitution on the part of the government, it may be that the idea of avoiding trials altogether for terrorist suspects will gain in strength. In this, Wittes, Goldsmith and Chesney may find that they are encouraged, disturbingly, by the Obama administration itself, which has already endorsed indefinite detention without charge or trial for 48 of the remaining 174 prisoners in Guantánamo, on the advice of the interagency Guantánamo Review Task Force, which was established by President Obama last year to review the cases of the remaining prisoners.

Moreover, in its apparent paralysis regarding trials either in federal court or by Military Commission for 34 prisoners (who were recommended for trial by the Task Force), the Obama administration is close to finding that it has enshrined indefinite detention without charge or trial as official US policy unless it acts immediately to put other Guantánamo prisoners on trial in federal court — starting, I suggest, with Khalid Sheikh Mohammed and his four alleged co-conspirators in the 9/11 attacks, whose federal court trial was announced by Eric Holder almost exactly a year ago.

If senior officials believe in the ability of federal courts to try terrorist suspects, they need to find the courage to say so, to say so boldly and with a courage that has been sadly lacking, and to follow through on their beliefs without caving in to criticism from opponents whose entire point of view is fueled by blind vengeance and a thorough disdain for the law.

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, as “The Rule of Law and the Ghailani Case.” Cross-posted on The Public Record, Cageprisoners and Uruknet.

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

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

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

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

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

The shame and disgrace of prosecuting a child

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

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

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

The problem of invented war crimes charges

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Did Omar Khadr throw the grenade?

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

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

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

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

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

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

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

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

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

(‘’)

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

As published exclusively on the website of the Future of Freedom Foundation. Cross-posted on AlterNet, Campaign for Liberty, The Public Record, Infowars, The World Can’t Wait, Uruknet, Eurasia Review, Pacific Free Press, BreaktheChains, Stranger than Fiction, Kanan 48 and NWO.eu.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(‘’)

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

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

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

The two men in question — Salim Hamdan and Ali Hamza al-Bahlul — were tried and convicted in 2008, but whereas Hamdan, a driver for Osama bin Laden, had the major charge against him (conspiracy) dismissed by a military jury in August 2008, and was sentenced to serve just six months for providing material support to terrorism, al-Bahlul, who made a video promoting al-Qaeda and is regularly described as al-Qaeda’s “media secretary,” was convicted of conspiracy, solicitation of murder, and providing material support to terrorism, and received a life sentence in November 2008.

Under consideration are two specific questions: firstly, whether providing material support to terrorism is a valid basis for conviction in a war crimes court; and, secondly, whether al-Bahlul’s trial was unfair because he was denied the right to represent himself.

On the first point, lawyers have always maintained that providing material support to terrorism is not a valid war crime. In an email exchange last week, Lt. Col. David Frakt, who represented al-Bahlul before his trial, explained, “It has always been my position that material support to terrorism was a fabricated war crime that was not traditionally triable in a military commission as of the time of Mr. al-Bahlul and Mr. Hamdan’s affiliation with al-Qaeda, but rather was illegally retroactively applied to them several years after the fact.”

As Lt. Col. Frakt also mentioned, the problems with the material support charges had been advanced by Hamdan’s attorneys in a pre-trial motion to dismiss the charge back in February 2008, when they also attempted to dismiss the conspiracy charge for the same reason. On July 16, the judge in Hamdan’s case, Army Capt. Keith Allred, rejected the motion to dismiss on ex post facto grounds, finding that “conspiracy and material support for terrorism have traditionally been considered violations of the law of war,” as Human Rights First explained in a summary of Hamdan’s case.

However, as Lt. Col. Frakt described it, Allred indicated that it was “a very close issue. Although he acknowledged that the crime of material support to terrorism had never been the subject of charges in a military commission before, he reasoned that similar conduct, essentially being part of an armed insurgent group committing war crimes against civilians, had been treated as a war crime in the past, such as during the US Civil War. He argued that Congress was merely providing a new name to conduct that had always been treated as a law of war offense triable by military commission.”

Significantly, Lt. Col. Frakt added, “What Captain Allred ignored is that what Mr. Hamdan was charged with was essentially serving as a personal driver and servant to Osama bin Laden and there was no indication of involvement in any war crimes, against civilians or otherwise.”

Even more significantly, when the Obama administration and Congress revived the Commissions last summer, David Kris, a senior Justice Department official in the National Security Division, testified that the Justice Department had concluded that material support to terrorism was not a traditional war crime and should be removed from the new version of the Military Commissions Act. As Kris explained (PDF):

While this is a very important offense in our counterterrorism prosecutions in Federal Court … there are serious questions as to whether material support for terrorism or terrorist groups is a traditional violation of the rules of war … our experts believe that there is a significant risk that appellate courts will ultimately conclude that material support for terrorism is not a traditional law of war offense, thereby reversing hard-won convictions and leading to questions about the system’s legitimacy.

As Lt. Col. Frakt explained to me, despite Kris’ concerns, “Congress rejected this sound advice and included material support to terrorism in the revised 2009 MCA, possibly in part because I advised Congress when I testified that if they removed this crime from statute there would be very few detainees left to prosecute.”

Noticeably, Kris was more enthusiastic about retaining the conspiracy charge, but as I explained in an article in November, “this, too, is fraught with problems. In Hamdan v. Rumsfeld, the case in which the Supreme Court shut down the Commissions’ first incarnation, Justice John Paul Stevens, in an opinion in which he was joined by three other justices, made a point of mentioning that ‘conspiracy’ has not traditionally been considered a war crime.”

In Hamdan’s case, a successful appeal on the material support charge would have little practical effect, as he is already a free man (although Charles Schmitz, who served as his interpreter during proceedings at Guantánamo, told the Wall Street Journal that it was “important to him to clear the conviction,” because “In Yemen, they look at him as a criminal. He’s been tainted”).

To be honest, a successful appeal on the material support charge would mean little to al-Bahlul either, although, it would, of course, fulfill the Justice Department’s own fears about including it in the new legislation, especially as the Obama administration has already announced its intention of using it against several prisoners currently held at Guantánamo.

It remains to be seen, of course, whether material support and/or conspiracy survive an appeal, but in court last week, lawyers for al-Bahlul pushed both points. As the Wall Street Journal described it, Michel Paradis, representing al-Bahlul, argued that the charges on which al-Bahlul was convicted “weren’t traditionally considered war crimes under international law, and thus Congress in 2006 couldn’t retroactively make them so. International law strongly discourages viewing conspiracy as a war crime. Providing material support for terrorism, while a domestic US crime since the 1990s, has never been considered a war crime.”

Ingeniously, the lawyers also argued that al-Bahlul’s production of propaganda material for al-Qaeda should have been protected by the First Amendment of the US Constitution, guaranteeing freedom of speech. One of his attorneys, Mike Berrigan, told reporters, “Mr. al-Bahlul’s conduct in making this documentary — his prosecution for that conduct — was a violation of the US First Amendment.  Not that Mr. al-Bahlul had particular First Amendment rights, but the constitutional restrictions on the US government prosecuting someone for speech made the prosecution itself illegal. Mr. al-Bahlul’s conduct in making that documentary does not come close to the standard of inciting violence that can be criminalized.”

The prosecution disagreed, of course, and Navy Capt. Edward White, who argued for the government at the appeal, stated, “Our position was that, as an enemy combatant waging war against the United States from abroad, he does not have First Amendment rights. He crossed the line into criminally, soliciting other people — inducing, enticing, encouraging, persuading them — to commit war crimes.”

Beyond all these claims, however, the most disturbing aspect of al-Bahlul’s conviction is the nature of his trial, and what Lt. Col. Frakt described to me as his “best hope” is that the Court of Military Commission Review will recognize that the one-sided trial, in which he refused to mount a defense, was fundamentally unfair — or, as Lt. Col. Frakt put it, the judge’s “denial of his right to self-representation essentially denied him of a fair trial because the judge knew that he would not allow me to represent him.”

This was indeed what happened. Al-Bahlul sought strenuously to represent himself, but although his request was granted by Army Col. Peter Brownback, his first judge in the revived Commissions, Brownback was then involuntarily retired from the Army, and the new judge, Air Force Col. Ronald Gregory, revoked al- Bahlul’s pro se status (his right to represent himself).

As I explained at the time, after Maj. Frakt (as he was at the time) announced that al-Bahlul was boycotting the trial, because he wished to represent himself, and did not wish to be represented by a military lawyer, Frakt then asked to be relieved, noting that he was obliged to respect his client’s wishes. When Col. Gregory refused, he declared that he too was unable to participate. “I will be joining Mr. al-Bahlul’s boycott of the proceedings,” he said, “standing mute at the table.” He then refused to answer any further questions from Col. Gregory, even though the judge attempted to argue that he was “obliged to participate,” before conceding that it was not in his power to force him to do so. As Lt. Col. Frakt described it to me last week, Col. Gregory’s actions “ensured there would be no defense at all in the final military commission trial of the Bush era.”

Lt. Col. Frakt also explained that, although appeals are automatic in the Commissions unless waived in writing, the only reason that al-Bahlul failed to waive his right to appeal in writing was because he “refused to accept any papers from his lawyers or the court.” As Frakt described it, “Mr. al-Bahlul made it plain to me that he did not wish to appeal any conviction and he categorically refused to meet with his appointed appellate counsel to discuss any possible grounds for appeal.”

Lt. Col. Frakt was full of praise for the lawyers attempting to defend al-Bahlul, even though they “were hampered by the fact that I did not preserve any issues for appeal (other than the self-representation issue) because I did not speak during the entire trial.” He noted that they “managed to find a way to raise a number of interesting and important issues that strike at the core of the legitimacy of the military commissions,” but in the end, what is most noticeable about al-Bahlul’s case is how he remains in a position of extraordinary isolation at Guantánamo.

Not only is he imprisoned, alone, to serve out his life sentence, but as Lt. Col. Frakt explained, “it remains a mystery what will happen to Mr. al-Bahlul. Although he is serving a life sentence, under current US law, he can’t be transferred out of Guantánamo to a prison on the mainland because detainees can only be transferred to the US to face trial.”

Unless he is to stay in Guantánamo, as the prison slowly empties around him, until, perhaps, he is the only prisoner left, it seems, as Lt. Col. Frakt also explained, that “special legislation will be required” to enable him to leave Guantánamo, even if it is just to resume his life sentence elsewhere.

Lost in the system, essentially, Ali Hamza al-Bahlul is another example of the way in which justice at Guantánamo never progressed much beyond an ad hoc system full of holes, and, whatever the outcome of these appeals, it should give the Obama administration some salutary reminders as to why the Commissions remain an unsuitable system for any kind of credible trial.

(‘’)

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

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

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

And for a sequence of articles dealing with the Obama administration’s response to the Military Commissions, see: Don’t Forget Guantánamo (February 2009), Who’s Running Guantánamo? (February 2009), The Talking Dog interviews Darrel Vandeveld, former Guantánamo prosecutor (February 2009), Obama’s First 100 Days: A Start On Guantánamo, But Not Enough (May 2009), Obama Returns To Bush Era On Guantánamo (May 2009), New Chief Prosecutor Appointed For Military Commissions At Guantánamo (May 2009), Pain At Guantánamo And Paralysis In Government (May 2009), My Message To Obama: Great Speech, But No Military Commissions and No “Preventive Detention” (May 2009), Guantánamo And The Many Failures Of US Politicians (May 2009), A Child At Guantánamo: The Unending Torment of Mohamed Jawad (June 2009), A Broken Circus: Guantánamo Trials Convene For One Day Of Chaos (June 2009), Obama Proposes Swift Execution of Alleged 9/11 Conspirators (June 2009), Predictable Chaos As Guantánamo Trials Resume (July 2009), David Frakt: Military Commissions “A Catastrophic Failure” (August 2009), 9/11 Trial At Guantánamo Delayed Again: Can We Have Federal Court Trials Now, Please? (September 2009), Torture And Futility: Is This The End Of The Military Commissions At Guantánamo? (September 2009), Resisting Injustice In Guantánamo: The Story Of Fayiz Al-Kandari (October 2009), 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).

As I recently reported in a series of three articles (here, here and here), despite persistent obstruction from the Justice Department, where Bush-era officials have been behaving as though Dick Cheney is still breathing down their necks, judges had, by the end of July, reviewed 33 cases, and in 28 of those had ruled that the government had failed to establish, “by a preponderance of the evidence,” that it was justified in holding the men. The judges concluded that, amongst other failings, the government was relying on information provided by dubious informers, on multiple levels of hearsay that failed to stand up to outside scrutiny, and on a supposed “mosaic” of evidence from various sources that was also unconvincing.

Nevertheless, although these rulings confirmed what those, like myself, who have been studying Guantánamo in depth for many years, have always maintained — that the majority of the prisoners are either innocent men seized for bounty payments (or through the incompetence of US forces and other government agencies) or low-level Taliban foot soldiers recruited to help the Taliban defeat Afghanistan’s Northern Alliance in an inter-Muslim civil war that had nothing to do with al-Qaeda or the 9/11 attacks — the courts still face a number of peculiar problems.

These problems have arisen not only because almost all of the government’s supposed evidence consists of the inherently dubious statements of informers, of multiple levels of hearsay and of feeble “mosaics” of intelligence (as mentioned above), but also because when the Supreme Court granted the prisoners constitutionally guaranteed habeas corpus rights in June 2008, the justices failed to provide a clear definition of the extent to which prisoners were required to be involved in al-Qaeda and/or the Taliban to have their habeas appeals refused.

The “gossamer thin” case against Adham Mohammed Ali Awad

The resultant confusion was on full display in August, when three rulings were made. In the first, on August 12 (PDF), Judge James Robertson denied the habeas appeal of Adham Mohammed Ali Awad, a Yemeni prisoner, even though he conceded that “The case against Awad is gossamer thin,” and added, “The evidence is of a kind fit only for these unique proceedings and has very little weight.”

This was Robertson’s first habeas ruling, and in the hands of another judge, the ruling may well have tipped the other way. Certainly, the case was as “gossamer thin” as Robertson declared. Awad, who was just 19 years old at the time, was seized in Mirwais Hospital in Kandahar, Afghanistan in late 2001. According to his own account, he had “traveled to Afghanistan in mid-September 2001 in order to visit another Muslim country for a few months,” but in early November 2001 “was injured and knocked unconscious during an air raid while walking through a market in Kandahar.” When he woke up in the hospital, he said, he discovered that he had lost his right foot, “that he was heavily medicated, floated in an out of consciousness, slept constantly, and could barely sit up.” He added that he “remained in this condition until his capture.”

Over the long years of his detention, as I explained in a profile of Awad last year, the US authorities have claimed that he “stated he went to Afghanistan to become a fighter,” have suggested that he received injuries “in a two-car collision, involving ten individuals, while trying to avoid coalition air strikes,” and have also claimed that he, “along with seven other Arabs suspected of being al-Qaeda, were reportedly armed with weapons and used a hospital as a safe haven to elude coalition forces.” These allegations, which surfaced in the Unclassified Summary of Evidence during Awad’s Combatant Status Review Tribunal at Guantánamo in 2004, formed the basis of the government’s case in court, even though, by 2006, in a review board at Guantánamo, the authorities had dropped all mention of the car crash, Awad’s supposed al-Qaeda associates, and his involvement in the siege, and, instead, suggested only that he was “captured on 2 November 2001 when he was injured near the airport in Kandahar.”

Judge Robertson perceived that Awad’s case “relie[d] mostly on weaknesses and holes in the government’s evidence,” which, as noted above, he was swift to condemn for its “gossamer thin” nature, but although he noted that the government “relie[d] mostly on newspaper articles” for background information about the hospital siege, which took place from early December to late January and ended with the deaths of the seven al-Qaeda fighters, and although he gave “no weight” to the “only first hand evidence offered by the government” — an interview with a man (whose name was redacted), who “claimed that he led the group that had taken Awad into custody”, whose report he dismissed as “internally inconsistent” and “completely unreliable” — he nevertheless concluded that “it appears more likely than not that Awad was, for some period of time, ‘part of’ al-Qaeda.”

To reach this conclusion, Judge Robertson was required to accept the government’s supposed evidence that Awad had attended Osama bin Laden’s Tarnak Farms training camp, an allegation that was based on a variation of his name, ”Waqas” (he was sometimes listed by the Pentagon as Waqas Mohammed Ali Awad), being found on a list associated with the camp. Although Judge Robertson refused to accept the government’s claim that Awad trained at the camp, finding it to be “unsupported,” noting, “we do not know the purpose of the list or when it was written,” and adding that the translator “claimed only that it was ‘possibly’ a list of trainees,” he returned to the allegations of Awad’s presence at Tarnak Farms to substantiate his conclusion that “it appears more likely than not that Awad was, for some period of time, ‘part of’ al-Qaeda.” He noted that the names of the other men killed in the siege and Awad’s purported alias, “Waqas,” were closely grouped together on the list, and inferred from statements provided by another man who was present in the hospital and was also taken to Guantánamo (a Saudi released in 2007) that Awad and “Waqas” were one and the same.

Missing throughout all this analysis was any reflection on whether it was true that Awad only arrived in Afghanistan in mid-September 2001, and if, therefore, it was likely that he would have been immediately recruited for training at an advanced facility in the few weeks before the US-led invasion began, which strikes me as close to impossible. Also missing was any recognition that, as the government claimed in 2006, Awad was seized before the siege began, or, if that was a typographical error (as was indicated in court), that he was injured on December 2, when the siege began, and that he was booted out of the hospital by the al-Qaeda fighters inside (or, as the government put it, “Awad’s comrades gave him up because they could not care for his severely injured [redacted]”).

Even with the government’s spin, there is something suspicious about would-be al-Qaeda martyrs sending one of their own to be captured, rather than staying and being martyred instead, but rather than examining these questions, Judge Robertson ruled that “At the very least Awad’s confessed reasons for traveling to Afghanistan and the correlation of names on the list [redacted] clearly tied to al-Qaeda make it more likely than not that he knew the al-Qaeda fighters at the hospital and joined them in the barricade.”

Quite where this leaves Awad is unknown, as the government does not seem to have enough evidence for a trial, and may, therefore, consider him a suitable candidate for its proposal to legislate for new powers of “indefinite detention,” to be reviewed by Congress and judges, which are supposed to provide an acceptable veneer to what is nothing more than a continuation of the Bush administration’s despised policies. To this end, what may disappoint Awad the most is that, although Judge Robertson described him as a “marginally literate” young man, who “has spent more than seven of his twenty-six years — since he was a teenager — in American custody,” and, moreover, stated, “It seems ludicrous to believe that he poses a security threat now,” he added, limply, “but that is not for me to decide.”

In doing so, he ignored an earlier ruling (PDF), in which Judge Ellen Segal Huvelle noted that the Authorization for Use of Military Force (the legislation passed in the week after 9/11 which authorized the President “to use all necessary and appropriate force” against those “he determines” to have been involved in any way in the 9/11 attacks) “does not authorize the detention of individuals beyond that which is necessary to prevent those individuals from rejoining battle,” and ignored another ruling, in the case of a Syrian prisoner, Abdul Rahim al-Ginco, in which Judge Richard Leon ruled that whatever relationship al-Ginco may have had with al-Qaeda was “utterly destroyed.” In al-Ginco’s case, this was because he had been tortured by al-Qaeda as a spy, but it was also noteworthy that Judge Leon stated that al-Ginco’s prior experience of al-Qaeda — “five days at a guest house in Kabul combined with eighteen days at a training camp — does not add up to a longstanding bond of brotherhood.”

Instead, however, Judge Robertson raised and dismissed a little-voiced question — whether it is appropriate to continue holding men who were seized in connection with a specific conflict (the overthrow of the Taliban and the installation of a new government, which came to an end years ago) — by stating, “Combat operations in Afghanistan continue to this day and — in my view — the President’s ‘authority to detain for the duration of the relevant conflict’ which is ‘based on long-standing law-of-war principles’ has yet to ‘unravel.’”

Mohammed al-Adahi and the al-Qaeda mirage

One judge who may have dealt more robustly with the “gossamer thin” evidence in the case of Adham Mohammed Ali Aawad is Judge Gladys Kessler, who, on August 21, granted the habeas appeal of Mohammed al-Adahi, a Yemeni who was 39 years old when he was seized on a bus in Pakistan (PDF). I described the broad outline of al-Adahi’s story in my book The Guantánamo Files as follows:

Married with two children, al-Adahi had never left the Yemen until August 2001, when he took a vacation from the oil company where he had worked for 21 years to accompany his sister to meet her husband … As he told his tribunal, “In Muslim society, a woman does not travel by herself.” After flying to Karachi, they traveled to Kandahar, where his brother-in-law was living. Al-Adahi stayed in Afghanistan for a month, “to ease his sister’s transition to life in Afghanistan,” and then made his way back to Pakistan, where he was arrested by soldiers while traveling on a bus. “They were capturing everybody with Arabic features,” he said. “I gave them my passport and that shows that I’m an Arab. They said, ‘why don’t you follow us, we need you at the Center.’ From that point on they brought us over here.”

However, while this was a fair précis, the government believed that it could establish a case that al-Adahi was actually a member of al-Qaeda, for a number of reasons that appeared, on the surface at least, to be plausible. As Judge Kessler explained, “There is no question that the record fully supports the Government’s allegation that Petitioner had close familial ties to prominent members of the jihad community in Afghanistan.” The brother-in-law, it appears, was “a prominent man in Kandahar,” who had fought the Russians in Afghanistan, and Judge Kessler also noted that it was “undisputed” that Osama bin Laden “hosted and attended [the] wedding reception in Kandahar,” that al-Adahi “was briefly introduced to bin Laden,” and that “A few days later, al-Adahi met bin Laden again and the two chatted briefly about religious matters in Yemen.”

However, Judge Kessler refused to accept the government’s contention that these familial ties and the two brief meetings with bin Laden proved that al-Adahi “was part of the inner circle of the enemy organization al-Qaeda,” and accepted instead that there was no reason to doubt that al-Adahi’s visit was, as he stated, to accompany his sister to her wedding (and also to receive medical treatment for a back problem). She noted also that he had not tried to hide the fact that he had met bin Laden, and that he had, in addition, stated that it was “common for visitors to Kandahar” to do so.

As in May, when she granted the habeas appeal of another Yemeni, Alla Ali Bin Ali Ahmed, Judge Kessler had serious doubts about the manner in which the government established its case, which focused primarily on its claim that its various allegations should be considered as part of a “mosaic” of intelligence, to be viewed as a whole, rather than being examined in isolation. Dismissing this approach, she stated that, although she understood that “use of this approach is a common and well-established mode of analysis in the intelligence community … at this point in this long, drawn-out litigation the Court’s obligation is to make findings of fact and conclusions of law which satisfy appropriate and relevant legal standards as to whether the Government has proven by a preponderance of the evidence that the Petitioner is justifiably detained.”

She proceeded to stress that “the mosaic theory is only as persuasive as the tiles which compose it and the glue which binds it together,” and that, “if the individual pieces of a mosaic are inherently flawed or do not fit together, then the mosaic will split apart.” Having dealt with the government’s first “tile,” she methodically dismantled the others, refuting a claim that al-Adahi had “stayed at al-Qaeda and/or Taliban guesthouses during his stay in Afghanistan,” and demolishing the government’s “central accusation”: that al-Adahi’s brief attendance at al-Farouq (the main training camp for Arabs, associated with Osama bin Laden in the years before 9/11) helped to confirm that he occupied “some sort of ‘structured’ role in the ‘hierarchy’ of the enemy force.”

Noting his claim that he “pursued training at al-Farouq to satisfy ‘curiosity’ about jihad, and because he found himself in Afghanistan with idle time,” she took particular exception to the government’s claim because, “After seven to ten days at al-Farouq, the camp leaders expelled al-Adahi for failing to comply with the rules.” Referring, incredibly, to the case of Abdul Rahim al-Ginco, the Syrian who was tortured by al-Qaeda (and whose case the Justice Department had pursued in the habeas courts until it was thoroughly humiliated by Judge Richard Leon in June), the government’s lawyers attempted to claim that, because al-Adahi was not imprisoned and tortured as a spy after he was expelled (like al-Ginco), this proved that he was being given preferential treatment because of his ties to al-Qaeda. However, Judge Kessler concluded instead that it was more likely that he “was being protected by a concerned family member” with considerable influence, and that “it most certainly is not affirmative evidence that al-Adahi embraced al-Qaeda, accepted its philosophy, and endorsed its terrorist activities.”

She was also dismissive of an allied claim — that al-Adahi was an instructor at al-Farouq in February 2000 — noting that the only source for this allegation was another prisoner at Guantánamo, for whom “the record contains evidence that [he] suffered from ‘serious psychological issues,’” and dismissed another claim — that al-Adahi was a bodyguard for bin Laden — by pointing out that this claim had been made by another prisoner who “suffers from serious credibility problems that undermine the reliability of his statements.” It seems probable, from references to a “report of torture by the Taliban” in the case of this witness, that he was Abdul Rahim al-Ginco, who, as Judge Kessler noted, admitted in August 2005 that he had “lied in the past.” She also noted that “interrogators had expressed concern that he was being manipulated by another detainee,” and quoted from a report stating that “before being placed next to that detainee [he] had never made any of the claims that he made to interrogators, including the accusation against al-Adahi.”

With the bulk of the government’s claims dismissed, it remained only for Judge Kessler to destroy the rest of the “mosaic” by noting that, with reference to the rest of al-Adahi’s time in Afghanistan after being expelled from al-Farouq, it was “only speculation” on the part of the government that injuries he received to his arm and leg in Kandahar were the result of combat, and not, as he stated, because of a motorcycle accident. She also pointed out that, although the government attempted to pin “associational evidence” of militancy on a claim that al-Adahi “was captured while traveling in the company of Taliban fighters” on a bus in Pakistan, the only source for this was something al-Adahi himself had been told after his capture, when he “heard that there were members of the Taliban on the bus.” Noting, in addition, that he was “unarmed” at the time of his capture, she concluded that “He appeared to be attempting to escape the chaos of that time by any means he could,” and granted his habeas appeal (although, as with all the cases of prisoners whose habeas appeals have been granted, the ruling provides no guarantee that he will actually be released).

Fawzi al-Odah: the Kuwaiti who trained for one day

On August 24, the government secured another shallow victory when Judge Colleen Kollar-Kotelly denied the habeas petition of Fawzi al-Odah, a Kuwaiti prisoner, agreeing with the government that it was “more likely than not” that he “became part of Taliban and al-Qaeda forces in Afghanistan” (PDF). Judge Kollar-Kotelly’s ruling was based on a dubious assemblage of information that relied more on inconsistencies in al-Odah’s account of his activities than it did on anything resembling concrete evidence, as she herself admitted, when she wrote that there were “significant reasons why the Government’s proffered evidence may not be accurate or authentic.” She explained that some of it was produced “in circumstances that have not allowed the Government to ascertain its chain of custody, nor in many instances even to produce information about the origins of the evidence,” that other evidence was “based on so-called ‘unfinished intelligence,’ information that has not been subject to each of the five steps in the intelligence cycle (planning, collection, processing, analysis and production, and dissemination),” and that other evidence was “based on multiple layers of hearsay (which inherently raised questions about reliability), or is based on reports of interrogations (often conducted through a translator) where translation or transcription mistakes may occur.”

The basic facts of the case, as I explained in an article for the BBC’s website in December 2007, are as follows. Al-Odah, a 24-year old primary school teacher, whose father, a retired air force pilot, fought with US forces during the Gulf War in 1991,

took a short holiday from work and traveled to Afghanistan in August 2001 to teach the Koran and provide humanitarian aid. This was something he had done before, in other countries, and his family had had a history of providing humanitarian aid, establishing libraries and wells in various countries in Africa.

After establishing contact with the Taliban, which he said “was necessary because that was the government in Afghanistan at that time,” Mr. Odah said he had been “touring the schools and visiting families,” teaching the Koran and handing out money, until his activities had been curtailed following 9/11.

He said that in Kandahar the Taliban representative “told me that was a dangerous place because it was the capital for the Taliban,” and had advised him to go to Logar, in the east of the country, where he had stayed with a family for a month, and left his passport and belongings for safekeeping. “If the Afghans saw I had a passport indicating I was an Arab, and they saw the money and the camera I had, I would have been killed,” he added.

He had then moved to Jalalabad, where he had stayed with another family, who had given him an AK-47 assault rifle to protect himself, Mr. Odah said. He had then joined other people crossing the mountains to Pakistan, where he had handed himself in to the border guards, he added. Mr. Odah said he expected to be escorted to the Kuwaiti embassy, but had instead been handed over to US forces.

In dissecting al-Odah’s story, Judge Kollar-Kotelly took exception to apparent inconsistencies in his account of his journey to Afghanistan, suggestions that he had lied about his plans to teach, and about the length of time he intended to stay. She concluded, by comparing his route — to Dubai, and then to Karachi, Quetta, Spin Boldak and Kandahar — with the same route taken by jihadists that the record “supports a reasonable inference that al-Odah may have also been traveling to Afghanistan to engage in jihad, and not to teach the poor and needy for two weeks.”

She followed up by casting doubts on his claim that he innocently “sought to contact a Taliban official upon reaching Afghanistan and that he subsequently moved around the country at the direction of this official,” and on his explanation that he visited a training camp “supervised by the Taliban, where “he took one day of training on an AK-47 rifle.” Following the government’s lead, she suggested that it was “more likely than not” that the camp was in fact al-Farouq, and that al-Odah arrived there on September 10, 2001, the day before the 9/11 attacks, when the camp was closed down.

She also took exception to al-Odah’s apparent inability to explain why he had not left Afghanistan after the 9/11 attacks, why there was at least a month’s gap in his account of what happened afterwards, and why, three months after the attacks, he was captured, armed with an AK-47, having crossed the border into Pakistan from the Tora Bora region (where al-Qaeda and the Taliban had been engaged in combat with Afghan and US forces), in the company of a group of armed men who, according to “credible evidence” provided by the government, included one man “who had substantial ties to al-Qaeda.”

To be fair, it was understandable that Judge Kollar-Kotelly drew the inferences she did from the information provided, as her summing up made clear, when she explained that al-Odah “has admitted that he sought to meet with a Taliban official upon his arrival in Afghanistan; that he was subsequently brought by a Taliban official to a Taliban-operated training camp near Kandahar, Afghanistan; that he took one day of training with an AK-47 at this camp: that the Taliban official sent him to stay with an associate in Logar, Afghanistan, after September 11, 2001; that he surrendered his passport and other possessions to this individual; that he met with individuals who were armed and appeared to be fighters; that he accepted an AK-47 from these individuals; and that he traveled with his AK-47 into the Tora Bora mountains, remained there during the battle of Tora Bora, and was captured shortly thereafter by border guards while still carrying his AK-47.”

From this outline of events, the government certainly had a stronger case than it did with Adham Mohammed Ali Awad, but even if this analysis is correct, the end result is that, nearly eight years after the 9/11 attacks, the United States is still asserting that it has the right to hold a young man who spent just one day at a training camp, who did not flee Afghanistan after the 9/11 attacks (perhaps because he feared reprisals if he was found escaping), who traveled with other men to Kabul, and then to Logar and then to Tora Bora and his eventual capture, with no evidence that he ever used the weapon he was given, and no evidence that his training involved anything more than firing a few rounds from an AK-47 in a practice session.

The long shadow of Salim Hamdan’s freedom

Back in January, when Judge Leon refused the habeas appeal of Ghaleb al-Bihani, a Yemeni who had worked as a cook for Arab forces supporting the Taliban, I made a comparison with the case of another prisoner, Salim Hamdan, which demonstrated to me that, although justice was finally within reach for some of the prisoners at Guantánamo, seven years after the prison opened, it was both farcical and unjust that Hamdan, a man who had worked as a driver for Osama bin Laden, had been tried in a Military Commission in which he was convicted of material support for terrorism, had served a five-month sentence delivered by a US military jury, and was now a free man in Yemen, while al-Bihani, who had never even met bin Laden, and who had, instead, worked as a cook before the 9/11 attacks and had subsequently failed to teleport himself out of the country after the US-led invasion began, continued to languish in Guantánamo, with no end to his detention in sight.

As the eighth anniversary of the 9/11 attacks approaches, I, like all those who oppose Guantánamo and everything it stands for, still hope that the small number of prisoners involved in the attacks, or in other terrorist attacks against the US, can be brought to justice, but I fail to see how rulings like those delivered last month in the cases of Adham Mohammed Ali Awad and Fawzi al-Odah contribute to that end. I believe that, with just four months to go until President Obama’s deadline for closing Guantánamo expires, all concerned would do well to direct their attention towards the few dozen prisoners at Guantánamo who are alleged to have been directly involved in terrorism, and to stop trying to defend the detentions of all the other men still held; men who, at best, were foot soldiers in a specific conflict that, in contrast to Judge Robertson’s words, came to an end no later than November 3, 2004, when Hamid Karzai was elected as the President of post-Taliban Afghanistan.

When Salim Hamdan was freed from Guantánamo, I wrote that his release spelled the end of the Bush administration’s justification for holding prisoners who had no meaningful connection to al-Qaeda or international terrorism. Ten months on, I stand by those words, and note that, although judges have now granted the habeas appeals of 29 of the 36 prisoners whose cases they have considered, nothing about the cases of the other seven men prevents Hamdan’s freedom from casting a longer and longer shadow over their continued detention.

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

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

For a sequence of articles dealing with the Guantánamo habeas cases, see: Guantánamo and the Supreme Court: the most important habeas corpus case in modern history and Guantánamo and the Supreme Court: What Happened? (both December 2007), The Supreme Court’s Guantánamo ruling: what does it mean? (June 2008), Guantánamo as Alice in Wonderland (Uighurs’ first court victory, June 2008), What’s Happening with the Guantánamo cases? (July 2008), Government Says Six Years Is Not Long Enough To Prepare Evidence (September 2008), From Guantánamo to the United States: The Story of the Wrongly Imprisoned Uighurs (October 2008), Guantánamo Uyghurs’ resettlement prospects skewered by Justice Department lies (October 2008), Guilt By Torture: Binyam Mohamed’s Transatlantic Quest for Justice (November 2008), After 7 Years, Judge Orders Release of Guantánamo Kidnap Victims (November 2008), Is Robert Gates Guilty of Perjury in Guantánamo Torture Case? (December 2008), A New Year Message to Barack Obama: Free the Guantánamo Uighurs (January 2009), The Top Ten Judges of 2008 (January 2009), No End in Sight for the “Enemy Combatants” of Guantánamo (January 2009), Judge Orders Release of Guantánamo’s Forgotten Child (January 2009), How Cooking For The Taliban Gets You Life In Guantánamo (January 2009), Lies, Damned Lies and Statistics (February 2009), Bad News And Good News For The Guantánamo Uighurs (February 2009), The Nobodies Formerly Known As Enemy Combatants (March 2009), Farce at Guantánamo, as cleared prisoner’s habeas petition is denied (April 2009), Obama’s First 100 Days: A Start On Guantánamo, But Not Enough (May 2009), Judge Condemns “Mosaic” Of Guantánamo Intelligence, And Unreliable Witnesses (May 2009), Pain At Guantánamo And Paralysis In Government (May 2009), Guantánamo: A Prison Built On Lies (May 2009), Free The Guantánamo Uighurs! (May 2009), Guantánamo And The Courts (Part One): Exposing The Bush Administration’s Lies (July 2009), Obama’s Failure To Deliver Justice To The Last Tajik In Guantánamo (July 2009), Obama And The Deadline For Closing Guantánamo: It’s Worse Than You Think (July 2009), How Judge Huvelle Humiliated The Government In Guantánamo Case (Mohamed Jawad, July 2009), As Judge Orders Release Of Tortured Guantánamo Prisoner, Government Refuses To Concede Defeat (Mohamed Jawad, July 2009), Guantánamo As Hotel California: You Can Check Out Any Time You Like, But You Can Never Leave (August 2009), Judge Orders Release From Guantánamo Of Kuwaiti Charity Worker (August 2009). Also see: Justice extends to Bagram, Guantánamo’s Dark Mirror (April 2009), Judge Rules That Afghan “Rendered” To Bagram In 2002 Has No Rights (July 2009), Bagram Isn’t The New Guantánamo, It’s The Old Guantánamo (August 2009).

Last week, however, when the House Committee on the Judiciary’s Constitution, Civil Rights, and Civil Liberties Subcommittee convened to hear further testimony about the Military Commissions, few media outlets noticed. This was a great shame, as one of the speakers was Lt. Col. (formerly Maj.) David Frakt of the US Air Force Reserves, whose testimony (PDF) was at least as riveting as that of his former adversary in the Military Commissions, Lt. Col. Darrel Vandeveld, the ex-prosecutor who resigned in September 2008. On July 8, Lt. Col Vandeveld told the committee that the Commissions were “broken beyond repair,” and “cannot be fixed, because their very creation — and the only reason to prefer military commissions over federal criminal courts for the Guantánamo detainees — can now be clearly seen as an artifice, a contrivance, to try to obtain prosecutions based on evidence that would not be admissible in any civilian or military prosecution anywhere in our nation.”

The main thrust of Lt. Col. Frakt’s testimony, as an experienced lawyer who studied the Military Commissions Act of 2006 in depth and served on the Commissions from April 2008 as a military defense attorney (for two prisoners, Mohamed Jawad and Ali Hamza al-Bahlul), is that the MCA should be repealed and trials held in federal courts, which have a proven track record of dealing with cases related to terrorism. However, as he is pragmatic enough to realize that this may not happen, he provided the Committee with eleven detailed revisions to the MCA, which should be followed if, as anticipated, everyone involved in the decision-making process continues to believe that the tainted Commissions will be able to deliver justice.

These are worth looking at in detail (they are on pp. 8-15 of Lt. Col. Frakt’s testimony), but as I agree with his assertion that, essentially, the MCA is a flawed piece of legislation that resuscitated an even more flawed and rigged system conceived by former Vice President Dick Cheney and his close advisors, after the Supreme Court struck down the Commissions’ original incarnation in June 2006, and that it should be consigned to the trashcan of history, I’m reproducing below the section of Lt. Col. Frakt’s testimony in which he explains why (pp. 4-8), and his conclusion (pp. 15-17).

In these sections, Lt. Col. Frakt runs through a chronology of the Bush administration’s deliberate flight from the law, with a particular focus on how standards were deliberately dropped in an attempt to secure successful prosecutions, how criminal activities were confused with acts of war, and how the laws of war were twisted — by both the Bush administration and by Congress — to include crimes that have never been previously been covered by the laws of war. I doubt that you’ll find a better explanation of the legal failures of the Bush administration’s response to the 9/11 attacks anywhere else.

“The Abandonment of the Rule of Law”
An excerpt from Lt. Col. David Frakt’s testimony to the Subcommittee on the Constitution, Civil Rights, and Civil Liberties, Committee of the Judiciary, United States House of Representatives, July 30, 2009

In the run-up to this section, Lt. Col. Frakt stated, “As we ponder the questions before us, I think it is important to review where we are now and how we got to this point.”

One point on which all sides should be able to agree is that the military commissions of the Bush administration were a catastrophic failure. The military commissions clearly failed to achieve their intended purpose. After more than seven years and hundreds of millions of dollars wasted, the military commissions yielded only three convictions, all of relatively minor figures. Not a single terrorist responsible for the planning or execution of a terrorist attack against the United States was convicted. Two of the convicted, David Hicks and Salim Hamdan, received sentences of less than one year and were subsequently released. The third trial, of my client Mr. al-Bahlul [Ali Hamza al-Bahlul], though yielding a life sentence, was far from a triumph for the military commissions.

There were several problematic aspects of this trial, not the least of which was the fact that several members of Mr. Hicks’ jury were actually recycled for this military commission. More disturbing was the denial of Mr. al-Bahlul’s statutory right of self-representation. Mr. Al-Bahlul, a low-level al-Qaeda media specialist, wanted to represent himself before the military commissions and this request was granted by the military judge at the arraignment, Army Colonel Peter Brownback. Soon thereafter, Col. Brownback was involuntarily retired from Army and replaced. The new judge revoked Mr. al-Bahlul’s pro se status, although he knew that Mr. al-Bahlul had refused to authorize me, his appointed military defense counsel, to represent him. As a result, there was no defense presented; Mr. al-Bahlul was convicted of all charges and received the maximum life sentence.

Why, with the entire resources of the Department of Defense, the Justice Department and the national intelligence apparatus at their disposal, were the military commissions such an abysmal failure? The answer is simple: the military commissions were built on a foundation of legal distortions and outright illegality. The rules, procedures and substantive law created for the commissions were the product of, or were necessitated by, the wholesale abandonment of the rule of law by the Bush administration in the months after 9/11. In the United States of America, any such legal scheme is ultimately doomed to fail.

If we review the origins of the military commissions, a clear picture emerges of an intentional disregard for existing legal norms. Perhaps the first indication that the rule of law was to be abandoned was in President Bush’s Military Order of November 13, 2001. In this document, President Bush found: “it is not practicable to apply in military commissions under this order the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts.” In other words, what we consider essential for a fair trial for us would not be required for them. How did the administration know, two months after 9/11, before a single major terrorist suspect had been caught, and before a single prosecutor had reviewed a single piece of evidence, that it would be impracticable to prosecute terrorism cases using existing rules and procedures? They didn’t, of course. But having made this unsupported finding, President Bush and his senior advisors set out to make it a reality.

Another major step in the abandonment of the rule of law came on February 7, 2002, when President Bush issued another order [PDF], this time announcing that the Geneva Conventions would not apply to those detained in the War on Terror, who were labeled with the new and misleading term “unlawful enemy combatants.” The President held not only that such persons were not entitled to be treated as prisoners of war, but also, shockingly, that they were not even legally entitled to be treated humanely. With a stroke of the pen, the President wiped out the principle source of the law of war and the entire existing legal framework for the treatment of persons captured in an armed conflict and replaced it with a policy preference for humane treatment, which could be readily discarded whenever it interfered with military or intelligence operations. The decision that humane treatment was not required created unnecessary confusion about what was permissible and cleared the way for the approval of a vast array of patently illegal and highly coercive “enhanced interrogation techniques” to be employed upon the detainees.

The abandonment of the rule of law was compounded by the decision to house the “unlawful combatants” at Guantánamo Bay, Cuba, and to turn the detention facilities there into a legal black hole, a place where detainees were not even entitled to be informed of the basis of their detention, much less challenge it. Indeed, the Bush administration, regrettably aided and abetted by Congress, made a determined (and, for several years, successful) effort to prevent detainees from gaining access to courts or legal representation. In an environment with no judicial oversight or meaningful avenues for redress, the detainees were simply at the mercy of their captors — and the captors were not in a merciful mood. The extraordinary pressure to produce “actionable intelligence” coupled with the vengeful mood of the times led inexorably to shameful abuses of detainees [Senate Armed Services Committee report, PDF].

In 2002 and 2003, as senior Bush administration officials drafted the rules for the President’s military tribunals, they were aware of several important pieces of information about the detainees at Guantánamo. First, despite claims by high-level officials, including Secretary Rumsfeld, that the detainees represented “the worst of the worst,” in reality, the vast majority of the detainees had no tangible connection with al-Qaeda, and even fewer had any provable role in any terrorist attack. Many of the detainees were completely innocent of any wrongdoing, and had simply been turned in for bounty, or were caught in the wrong place at the wrong time.

The worst that could be said about many of them was that they had fought against the US and coalition forces that had invaded Afghanistan, conduct that, under the laws of war, would not be considered a war crime. A small group of those captured were likely guilty of terrorism crimes, but not crimes of war. The administration was also keenly aware that, to the extent that there was some evidence of criminal acts by a small fraction of the detainees, much, if not most of this evidence had been developed through highly coercive interrogations, which would not be admissible in a regular court of law.

The drafters of the original military commission rules [PDF] resolved each of these problems by rewriting the law. First, the rules of evidence were rewritten to allow the introduction of coerced statements and to eliminate the rules barring the fruits of torture and abuse. Second, the drafters classified as “war crimes” conduct, such as conspiracy and terrorism crimes that are violations of regular criminal law but had never previously been recognized as covered by the laws of war, largely because the laws of war rightly apply to the narrow context of armed conflict.

They also created a number of “new” war crimes based on the alleged status of a person, rather than on conduct that actually violates the laws of war [PDF]. The most egregious examples of these were the invented crimes “Murder by an Unprivileged Belligerent” and “Destruction of Property by an Unprivileged Belligerent,” which appeared in the original commission’s list of offences. These provisions made killing US soldiers, destroying military property, or attempting to do so, a war crime. In other words, the US declared that it was a war crime to fight, regardless of whether the fighters comply with the rules of war.

After protracted litigation, the original military commissions were invalidated by the Supreme Court in Hamdan v. Rumsfeld [PDF] in the summer of 2006 before anyone was ever convicted. With nearly five years wasted, there was a great rush to put a new legal system in place. Within months “new and improved” military commissions were authorized by Congress through the Military Commissions Act of 2006 (MCA) [PDF]. While these legislatively created commissions were undoubtedly an improvement over those created by Presidential decree, the hastily drafted and poorly considered MCA still incorporated some of the key distortions and departures from the rule of law featured in the invalidated version. Most disturbingly, Congress retained the rules of evidence (with minor variations) that permitted coerced evidence to be introduced. Congress also retained the full list of war crimes (again with minor variations), including the invented ones, and even added new ones, such as the flexible catch-all “material support to terrorism.”

The Obama administration has now acknowledged that material support is not a traditional war crime, calling into question all three of the convictions thus far attained. (Mr. Hicks, Mr. Hamdan and Mr. al-Bahlul were all convicted of material support. For Mr. Hicks and Mr. Hamdan, it was the only crime of which they were convicted). Although the military commissions were purportedly modeled on the Uniform Code of Military Justice (UCMJ), the best features of that system, such as the robust pretrial investigation required by Article 32 of the UCMJ and equal access by the prosecution and the defense to evidence and witnesses, were removed or weakened. The implementing regulations produced by the Secretary of Defense [PDF], which could have corrected or mitigated some of the glaring problems with the legislation, served only to exacerbate them.

Despite the widespread criticism of the MCA by the international community, legal scholars and non-governmental organizations, identifying the myriad shortcomings of the military commissions, the Bush administration was determined to press ahead with the military commissions and convict as many detainees as possible. It was the hope and deliberate strategy of the administration that if the military commissions were well underway by the time the next administration assumed office, with several trials completed and convictions duly rendered (the administration did not foresee or accept the possibility of acquittals), the commissions would be difficult to derail.

This “spray and pray” strategy might have succeeded but for one factor the Bush administration never anticipated: many of the military lawyers assigned the role of prosecutors, defense counsel and judges in the military commissions refused to put aside their ethical obligations and their training in the rule of law. Many of these judge advocates, officers with decades of experience in the law of war, considered the military commissions an affront to the military justice system to which they had devoted their careers.

Ethical and courageous military prosecutors, such as former Chief Prosecutor Colonel Morris Davis and Lieutenant Colonel Darrel Vandeveld, who took their oaths to defend the Constitution seriously, resigned rather than be party to trials using coerced evidence or to allow political considerations to interfere with their prosecutorial judgment. Professional military judges refused to be bullied into endorsing the administration’s strained interpretations of the law of war. Tenacious military defense counsel challenged the government at every turn, exposing the many flaws in this concocted legal system and the disgraceful brutality with which their clients had been treated. Through patient, professional advocacy both inside and outside the commissions, these lawyers managed to put the brakes on the military commission freight train and slow the proceedings to the point where it was a simple matter for President Obama to suspend them almost immediately after assuming office. This suspension period allows us an opportunity for reasoned debate about the shortcomings of the military commissions and their efficacy and utility.

Although I have become known as a fierce critic of the military commissions, I want to make it clear that I am not opposed to military commissions as a general matter, but rather am opposed to military commissions in their current form. I am a strong proponent of military justice and have no concerns about the military’s ability to provide a fair trial, even for our worst enemies, given a fair set of rules and procedures. In my law review article [“An Indelicate Imbalance,” an article about the Commissions for the American Journal of Criminal Law in 2007] I did not propose to abolish the military commissions, but rather suggested a number of legislative and regulatory changes to convert them into a viable, acceptable system. After practicing in the military commissions, I developed some additional concerns with the military commissions which also would require legislative action to address […].

Although I still believe it is theoretically possible to amend the MCA to create valid commissions, the best solution would simply be to repeal the MCA and start over to create military commissions that are not just loosely based on the UCMJ and Manual for Court-Martial [980 pages, PDF], but are virtually identical. Any proposed deviation from court-martial procedure would have to be carefully scrutinized to ensure that it was truly necessary and appropriate and not merely an effort to favor the prosecution. Any deviations, individually and cumulatively, from the rules and procedures for general courts-martial should be minimal, and must not significantly detract from the overall fairness of the proceedings. In my view, had we adopted a military commissions scheme that truly mirrored the rules and procedures for general courts-martial, as was already authorized under federal law in 2001, we would not be in the position we find ourselves in today. The military commissions would have succeeded in providing fair trials and would not have been plagued by endless delays, challenges and setbacks.

*****

After running through his extensive list of proposed amendments, Lt. Col. Frakt nevertheless concluded by asking the members of the Committee to consider whether these would be sufficient to overcome an overarching problem with the Commissions, which has nothing to do with any kind of amendment, whether major or minor, and I conclude by reproducing his closing statements, as they return, with the utmost relevance, to the fundamental problems caused by the Bush administration’s insistence — reiterated by Congress when it passed the MCA — that criminal offenses could be regarded as violations of the laws of war.

Lt. Col. Frakt’s conclusion

The question this committee, and the rest of Congress, must consider is whether there is any point in continuing with military commissions. As President Obama has stated, military commissions are a legitimate forum in which to try offenses under the law of war, but this begs the question of whether there are any law of war offenses to try. If one were to review the charges brought against all of the approximately 25 defendants charged in the military commissions, as I have, one would conclude that 99% of them do not involve traditionally recognized war crimes. Rather, virtually all the defendants are charged with non-war crimes, primarily criminal conspiracy, terrorism and material support to terrorism, all of which are properly crimes under federal criminal law, but not the laws of war.

In fact, in my estimation, there has been only one legitimate war crime charged against any Guantánamo detainee, the charge of perfidy against Abdul Rahim al-Nashiri for his alleged role in the attack on the USS Cole in October 2000. But even though perfidy is a traditional offense under the law of war, convicting Mr. al-Nashiri of this offense requires accepting the dubious legal fiction that the United States was at war with al-Qaeda nearly a year before 9/11, for the law of war only applies during a war. In fact, most of the offenses with which the so-called “high-value detainees” are charged relate to events which occurred on or before 9/11, when the US was not involved in an armed conflict with al-Qaeda. Perhaps more to the point, Mr. al-Nashiri was also charged with several other non-law of war offenses arising out of the same conduct, including multiple charges carrying the death penalty, making the charge of perfidy redundant […].

If there are no real war crimes to prosecute, are there any good reasons to continue with military commissions? The Bush administration’s motive for creating military commissions was to establish a forum in which American standards of due process did not apply and convictions could be obtained for terrorism crimes (not law of war offenses) under summary procedures using evidence which would not be admissible in a regular court of law. The Obama administration has now rightly concluded that Constitutional due process standards should apply to military commissions, and that normal rules of evidence should apply. Modifying the military commissions to comport with due process and the rule of law will mean eliminating the very reason for their existence. Partially amending them with some minor cosmetic changes will result only in many more years of protracted litigation.

Among the over two hundred detainees still at Guantánamo, there are perhaps a few dozen who have committed serious offenses. I have yet to hear any compelling reason why any of these men could not be prosecuted under existing law in Federal Court. As the recent report by Human Rights First conclusively demonstrates [PDF], the federal courts are open, and have a long track record of successful prosecutions of terrorism cases. Military commissions have not proven to be faster, more efficient or less costly than the alternative. The logistical difficulties in trying cases in Guantánamo have proven to be incredibly vexing. With Guantánamo slated to be closed in the next six months, the military commissions will have to be relocated and a whole new infrastructure created to support the commissions. This could further delay the commissions for months or even years. Military lawyers, unlike federal prosecutors and federal public defenders, have no special expertise in prosecuting or defending complex international terrorist conspiracies. The entire military commissions experiment has been a massive drain on DoD resources and personnel at a time when the military can least afford it.

The only other reason I have heard advanced for the use of military commissions is the belief that a person who could not be successfully prosecuted in Federal Court because of evidentiary problems might be successfully prosecuted in a military commission. Those who make this argument are essentially conceding that military commissions do not and should not provide the same due process as a regularly constituted American court.

The desire to achieve convictions at all costs is simply not an acceptable basis for the creation of an alternative legal system. The reason that the military commissions failed — indeed, the primary mistake of the entire “War on Terror” — was the pervasive abandonment of the law by the prior administration. We must not repeat the mistakes of the past and continue to cut corners. We must remember that this war is ultimately a war about ideas and values. True American values guarantee justice and fairness for all, even for the vilified and unpopular. If there are terrorists and war criminals to be tried, let’s do it the old-fashioned way, in a fair fight in a real court with untainted evidence. America is better than the last eight years. It is time to prove it to the world, and to ourselves.

David Frakt is a law professor at Western State University College of Law and a Lieutenant Colonel in the USAF Reserves.

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

Cross-posted on The Public Record and After Downing Street.

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).

Reviving the Commissions, ill-advisedly

In May, in a major speech on national security, Barack Obama signaled that he was planning to revive the Commissions, arguing that, with some amendments, they would be “fair, legitimate, and effective,” and promising to “work with Congress and legal authorities across the political spectrum on legislation” that would fulfill these aims.

Pleasant though it was to hear a President talk of involving Congress, without having to have his arm twisted to do so, Obama’s willingness to revive the Commissions flew in the face of widespread opposition from civilian lawyers and a wide range of legal experts, and, most significantly, from seven former prosecutors who resigned in disgust at what they saw as the politicization of the system or its irremediable faults (including Col. Morris Davis, the former chief prosecutor, and Lt. Col. Darrel Vandeveld, who resigned last September), and all of the government-appointed defense attorneys, who have been prepared to risk their careers to oppose what they all realized was an unjust system.

Critics — myself included — were not placated by Obama’s proposed tweaking of the Commissions’ rules, and insisted that the only way forward was to drop the Commissions and proceed with federal court trials. Bizarrely, on the same day as Obama’s speech, the administration announced that Ahmed Khalfan Ghailani, a suspect in the 1998 African embassy bombings, would face a trial in New York, and, moreover, in an accompanying press release, the Justice Department trumpeted its “long history of … successfully prosecuting terror suspects through the criminal justice system” (and attached a list of successful prosecutions over the last 16 years), which rather seemed to prove the point that the Commissions — which have achieved only three dubious results (David Hicks, Salim Hamdan and Ali Hamza al-Bahlul) — should not be revived.

Nevertheless, in the last few weeks the Senate Armed Services Committee — and its chairman, Sen. Carl Levin, who really should know better — bowed to the President’s wishes and tweaked the wording of the Military Commissions Act of 2006 (which revived the Commissions after the Supreme Court ruled that their first incarnation was illegal), even though, as I reported last week when Lt. Col. Vandeveld delivered testimony to the Committee which should have halted the politicians in their tracks, it still allows the use of information masquerading as evidence that was obtained through coercion, and still allows for hearsay information to be appraised as evidence by judges who are not qualified to make such decisions.

The legislation has yet to be approved by the Senate, but last week the Commissions reconvened anyway, even though the as-yet-undecided debate about their future added another layer of confusion to events that, as has been typical throughout the long and ignominious history of the Commissions, involved technical difficulties, uncooperative prisoners, and bouts of wrangling over the rules.

An outlandish claim kicks off the proceedings

One of the week’s few dramatic highlights came at the very beginning. Speaking to reporters on Tuesday, before the pre-trial hearings began, Navy Capt. John Murphy, the Commissions’ new chief prosecutor, announced that prosecutors were ready to proceed with cases against 66 of the remaining 228 prisoners (the 229th, Ali Hamza al-Bahlul, is already locked up for life — in a cell on his own somewhere in Guantánamo — after his disturbingly one-sided trial in November).

As David Danzig, Deputy Program Director at Human Rights First, explained, Murphy said, “We have 66 viable cases,” and added that he was “personally comfortable” that “the government could mount a case that would not depend on evidence gathered through the use of coercion.” Danzig also noted that Murphy “refrained from commenting on whether the government might seek to bring some of those cases to trial in federal civilian courts.”

Personally, I’m amazed that Murphy could claim that there are as many as “66 viable cases,” given that intelligence reports over the years have put the number of prisoners with any meaningful connection to terrorism as somewhere between two dozen and 40 of the prisoners (and also given that, of the 23 cases that were still active when Bush left office, two involved juveniles, and at least eight of the cases had nothing to do with “war crimes”), but what particularly exercised some of the reporters was that the prosecutor’s office seemed to be “making decisions about what evidence was appropriate and what evidence was not appropriate to use without any independent review.”

Vic Hansen, a former Army Judge Advocate General officer who was observing the proceedings for the National Institute of Military Justice, said, “They say repeatedly that they are not going to rely on evidence that was obtained using coercion. Well, it’s the prosecution who is making that call alone without any transparency.”

This was a very valid point, and as Danzig noted, although Murphy “said that the prosecution had developed ‘a standard’ to ensure that no evidence obtained improperly would be used in the trials … he declined to elaborate on that standard,” and did not refer to the fact that the Senate is still discussing whether to impose a voluntariness standard (at the instigation of the Obama administration), which, as Danzig stated, “would presumably exclude coerced evidence.” As Hansen added, “What it comes down to is more or less the government saying, ‘just trust us.’”

Challenges and calls for delay in the case of Ibrahim al-Qosi

On Wednesday, when the pre-trial hearings were supposed to begin, court staff complained they couldn’t hear Navy Cmdr. Dirk Padgett introduce himself as a prosecutor in the case of Ibrahim al-Qosi, one of three prisoners whose cases were being discussed that day, prompting a reply from Padgett that, to some, could serve as a motto for the whole of the Commissions. “Hopefully, this is going to get better,” he said.

In the event, things didn’t get better at all. In the case of al-Qosi, a 49-year old Sudanese prisoner who is accused of being a bodyguard and sometime driver for Osama bin Laden, prosecutors called for a delay “in the interests of justice” until September, which would, apparently, give the Obama administration time to complete its review of the cases. Marine Corps Capt. Seamus Quinn, one of al-Qosi’s prosecutors, stated, “The continuance is needed … to address and eliminate all possible challenges to this process,” according to Reuters.

The call for a delay infuriated al-Qosi’s defense lawyers, who have long maintained that their client was nothing more than a cook for bin Laden, and of no more significance than Salim Hamdan, one of bin Laden’s drivers, who is now a free man in Yemen, having served a five-month sentence that he was given after his trial last August. As Reuters described it, al-Qosi’s lawyers asked the military judge “to either dismiss the charges or move forward.”

“You cannot sit somebody in indefinite detention,” Navy Lt. Cmdr. Travis Owens said. “It violates every principle we have as Americans.” Invoking what Carol Rosenberg of the Miami Herald described as a “justice-delayed, justice-denied” argument, on the grounds that al-Qosi “was among the first men taken to the prison camps when they opened in January 2002,” Owens added, “He was one of the guys who was kept in the dog cages. Talk about oppressive confinement.”

Challenges and calls for delay in the case of Mohammed Kamin

While the judge, Air Force Lt. Col. Nancy Paul, refused to make an immediate ruling on the prosecutors’ request, even more chaotic scenes took place in an adjacent courtroom, where a second pre-trial hearing was taking place in the case of Mohammed Kamin, an Afghan seized in 2003.

Kamin’s is one of the more ludicrous cases put forward for a trial by Military Commission — or, for that matter, any kind of trial — as I explained last March, when he was arraigned:

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

On Wednesday, Kamin boycotted the proceedings, telling a military official who offered him the opportunity to take a shower before the hearing, “I’ll take a shower when you guys are ready to send me home.” In his absence, prosecutors also called for a delay, although no one actually turned up to make the request. Instead, a heavily pregnant prosecutor, Navy Lt. Rachel Trest, called in by closed-circuit feed from Washington, although, as Carol Rosenberg noted, “her argument was inaudible at the media center designed years ago to simultaneously broadcast both trials to journalists.”

There was, however, an outburst of drama when, in spite of a court tip sheet predicting that Navy Lt. Rich Federico, one of Kamin’s defense lawyers, would “ask for guidance on how much trial preparation could take place during the White House-mandated interregnum,” Federico instead urged dismissal of the entire case, referring to comments made last week by Justice Department national security lawyer David Kris, who told the Senate Armed Services Committee (PDF), “Our experts believe that there is a significant risk that appellate courts will ultimately conclude that material support for terrorism is not a traditional law of war offence, thereby reversing hard-won convictions and leading to questions about the system’s legitimacy.”

As this is the only charge Kamin faces, Federico told the judge, “They cannot ethically proceed on this charge in this forum. It’s appalling. It’s just a waste of everyone’s time.” The Wall Street Journal added that he also said that the government’s continued pursuit of the case was “unethical, immoral and unjust,” called the proceedings “a charade, a complete fraud,” and stated that the Commissions remained “a broken system.”

As with al-Qosi’s case, Kamin’s judge, Air Force Col. Thomas Cumbie, refused to make an immediate ruling on the prosecution’s call for a delay — or Federico’s unexpected intervention — although, in response to a challenge from Federico he conceded that “the rules of the court were still evolving,” as Carol Rosenberg put it, and stated, “I’m not saying in any way you ambushed me. Things change.”

Nevertheless, the questions regarding the validity of the “material support” charge are unlikely to go away, and will need resolving before any further hearings take place, Ironically, the charge is a valid crime in a federal court, but has been contested in the Commissions since it was first grafted onto the legislation in 2006. As Salim Hamdan’s civilian lawyer, Harry Schneider, explained on Wednesday, “We’ve always been of the view that [material support] was not a war crime and the conviction should not stand.” He added, as Carol Rosenberg put it, that the debate in the Commissions “appeared to enhance a Hamdan clemency bid already on file with the Pentagon,” and stated that, if the administration does drop material support as a crime in the Commissions, “Salim would be exonerated in the sense that he would never have been convicted of anything.”

No lawyers for Omar Khadr

On Wednesday afternoon, Omar Khadr, the Canadian who was just 15 when he was seized in 2002, returned to the court to resume the discussions about his lawyers that he was having on June 1, when the Commissions first reconvened. On that occasion, as Michelle Shephard explained in the Toronto Star, Army Col. Patrick Parrish “repeatedly lambasted Khadr’s legal team” for their in-fighting, which had led Khadr to conclude that he couldn’t trust any of them, but commended Khadr himself for being “well-spoken” and “professional.”

Six weeks ago, Parrish refused to allow Khadr to be unrepresented, and the Canadian reluctantly decided to stick with Lt. Cmdr. William Kuebler, who, it must be noted, has campaigned assiduously on Khadr’s behalf, but on Wednesday, Khadr’s suspicions were back to the fore. “I don’t trust the office of military defense,” he said, prompting Parrish to make the unprecedented decision to appoint two civilian lawyers instead.

Mostly a no-show for the 9/11 pre-trial hearing

The big news of the week was supposed to be the pre-trial hearing of the five men accused of involvement in the 9/11 attacks, but in the end this too was a damp squib. No one turned up at all in the morning, after the men refused to leave their cells, and in the afternoon, Khalid Sheikh Mohammed, the unarguable showman of the group, refused to attend, as did Ramzi bin al-Shibh, even though the hearing was convened to deal with ongoing issues regarding his mental competency, and that of another of the five, Mustafa al-Hawsawi. Al-Hawsawi, Ali Abdul Aziz Ali and Walid bin Attash eventually turned up in the courtroom, but there was little activity.

According to Reuters, “al-Hawsawi soon demanded to leave after complaining he would not be allowed to speak,” and “bin Attash, given five minutes to address the court, complained that the presiding judge, Army Colonel Steven Henley, had not responded to letters the five men had written to him ‘a long time ago.’” In the only flicker of the dissent normally associated with KSM’s presence, he explained, “If you don’t have enough patience to take this case, just give it to a different judge. We view the judge and prosecution as one person. There’s no difference.” Later, bin Attash showed his disdain for the proceedings by throwing a paper plane — fashioned, presumably, from his court papers — at one of his co-accused.

The rest of the session focused on attempts by bin al-Shibh’s lawyers to “allow a defense consultant to examine CT scans of her client’s brain and perform further tests, including possibly an MRI, to ‘determine whether any lesions in his brain affect his cognitive functioning.’” Navy Cmdr. Suzanne Lachelier explained that bin al-Shibh has been diagnosed with “delusional disorder,” but when she tried to explain that he had been subjected to sleep deprivation, a court censor cut off the feed to the media center.

In an attempt to rebuff these complaints, one of the prosecutors, Navy Lt. Clayton Trivett, said that bin al-Shibh’s complaints about sleep deprivation may have been produced by his pre-existing condition. Trivett explained that bin al-Shibh “has accused guards of pumping foul smells and loud noises into his cell and ‘vibrating his bed’ to keep him awake,” even though “The government’s position is that it’s not happening and it’s never been happening,” although another interpretation could be that the initial collapse of bin al-Shibh’s mental health was caused by whatever happened to him during the four years that he was held in a secret CIA prison before his arrival at Guantánamo in September 2006.

With no visible progress — and with the little that did take place overshadowed by the dispute over the charge of material support for terrorism, which would have a knock-on effect on several other cases — this was another dismal outing for the Commissions, and, surely, another warning for the Obama administration that any kind of revival of the wretched trial system will remain fraught with insoluble problems.

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

As published on the Huffington Post, Antiwar.com, CounterPunch and ZNet.

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).