17 Years Since the Notorious Yoo-Bybee “Torture Memos,” the US Still Finds Itself Unable to Successfully Prosecute the Men It Tortured

John Yoo, Jay S. Bybee and prisoners on a rendition plane.

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I wrote the following article for the “Close Guantánamo” website, which I established in January 2012, on the 10th anniversary of the opening of Guantánamo, with the US attorney Tom Wilner. Please join us — just an email address is required to be counted amongst those opposed to the ongoing existence of Guantánamo, and to receive updates of our activities by email.

August 1 was the 17th anniversary of a particularly grotesque and dispiriting event in modern US history, one that has ramifications that are still being felt today, even though it was completely unnoticed — or ignored — by the US media. 

On August 1, 2002, Jay S. Bybee, then the Assistant Attorney General for the Office of Legal Counsel (OLC), the branch of the Justice Department responsible for advising the executive branch on what is, and what is not legal, signed off on two blatantly unlawful memos written by OLC lawyer John Yoo, which attempted to re-define torture, and approved its use on Abu Zubaydah, a prisoner of the “war on terror” that the US declared after the terrorist attacks of September 11, 2001, who was being held in a secret prison — a “black site” — run by the CIA.

The memos remained secret until June 2004, when, in the aftermath of the Abu Ghraib scandal, when photos were leaked of torture in a US-run prison in Iraq, one of the Yoo-Bybee memos was also leaked, provoking widespread disgust, although Yoo and Bybee escaped the criticism unscathed. For his services, Bybee was made a judge on the Ninth Circuit Court of Appeals, while Yoo kept his job as a law professor at the University of Berkeley. 

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Slow Death at Guantánamo: Why Torture and Open-Ended Arbitrary Detention Are Such Bad Ideas

An undated photo of a prisoner at Guantánamo being escorted by guards (Photo: Chris Hondros / Getty Images).

Please support my work as a reader-funded journalist! I’m currently trying to raise $2500 (£2000) to support my writing and campaigning on Guantánamo and related issues over the next three months of the Trump administration. If you can help, please click on the button below to donate via PayPal.




 

I wrote the following article for the “Close Guantánamo” website, which I established in January 2012, on the 10th anniversary of the opening of Guantánamo, with the US attorney Tom Wilner. Please join us — just an email address is required to be counted amongst those opposed to the ongoing existence of Guantánamo, and to receive updates of our activities by email.

Let’s be clear about two things before we start: torture and indefinite imprisonment without charge or trial are never acceptable under any circumstances. Torture is prohibited under the UN Convention Against Torture, introduced in 1985 and ratified by Ronald Reagan, and Article 2.2 of the Convention states, unequivocally, “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.” 

In addition, indefinite imprisonment without charge or trial is unacceptable because there are only two ways in which it is acceptable for countries that claim to respect the rule of law to deprive someone of their liberty: either by trying them for a crime in federal court, or holding them as a prisoner of war until the end of hostiliites, with the protections of the Geneva Conventions. 

After 9/11, however, the US created a network of torture prisons around the world, and invented a third category of prisoner — illegal or unlawful enemy combatants — who had no rights whatsoever. 

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Guantánamo’s Lost Diaspora: How Donald Trump’s Closure of the Office Monitoring Ex-Prisoners is Bad for Them – and US Security

Four prisoners released from Guantanamo who have ended up in very different circumstances following the closure by Donald Trump of the office of the Special Envoy for Guantanamo Closure. Clockwise from top left: Abu Wa'el Dhiab, Omar Mohammed Khalifh, Abd al-Malik al-Rahabi and Ravil Mingazov.Please support my work as a reader-funded journalist! I’m currently trying to raise $2500 (£2000) to support my writing and campaigning on Guantánamo and related issues over the next three months of the Trump administration. If you can help, please click on the button below to donate via PayPal.




 

I wrote the following article, as “Guantánamo’s Lost Diaspora: How Donald Trump’s Closure of the Office Monitoring Ex-Prisoners Endangers U.S. National Security,” for the “Close Guantánamo” website, which I established in January 2012, on the 10th anniversary of the opening of Guantánamo, with the US attorney Tom Wilner. Please join us — just an email address is required to be counted amongst those opposed to the ongoing existence of Guantánamo, and to receive updates of our activities by email.

The presence of Donald Trump in the White House has been an unmitigated disaster for anyone concerned about the ongoing existence of the prison at Guantánamo Bay, and any notion of justice regarding those held there, or, indeed, those freed from the prison over the years.

For Trump, the notion that there might be anything wrong — or un-American — about imprisoning people forever without any meaningful form of due process clearly doesn’t exist. Since he took office nearly two years ago, only one prisoner has been released, out of the 41 men still held at the prison when Obama took office; and that man, Ahmed al-Darbi, a Saudi, was only released, and transferred to ongoing imprisonment in Saudi Arabia, because of a plea deal he agreed to in his military commission trial proceedings back in 2014.

Trump, clearly, has no desire to meaningfully continue the parole-type process — the Periodic Review Boards — that Barack Obama initiated to release lower-level prisoners who could demonstrate that they didn’t pose a threat to the U.S. Indeed, his contempt for the process is such that he has shut down any possibility of the two men whose release was approved by Obama’s PRBs, but who didn’t get released before Obama left office, being freed by shutting down the State Department office that dealt with resettlements — the office of the Special Envoy for Guantánamo Closure. Read the rest of this entry »

A “Cluster Covfefe”: Guantánamo Prisoner Majid Khan’s Damning Verdict on the Shambolic Military Commissions

Guantanamo prisoner Majid-Khan, photographed at Guantanamo in 2009 by representatives of the International Committee of the Red Cross.Please support my work as a reader-funded journalist! I’m currently trying to raise $2500 (£2000) to support my writing and campaigning on Guantánamo and related issues over the next three months of the Trump administration.




 

I wrote the following article for the “Close Guantánamo” website, which I established in January 2012, on the 10th anniversary of the opening of Guantánamo, with the US attorney Tom Wilner. Please join us — just an email address is required to be counted amongst those opposed to the ongoing existence of Guantánamo, and to receive updates of our activities by email.

To the US political, military and intelligence establishment, Guantánamo prisoner and “high-value detainee” Majid Khan — held and tortured in CIA “black sites” for three years, where he was subjected to water torture and another horrible form of torture, “rectal feeding” — is a dangerous convicted terrorist, but to anyone who takes an interest in the man himself, Khan, a Pakistan citizen who spent six years in the US as a teenager, graduating from a high school in Maryland, is a reformed character, who has cooperated fully with the authorities, and ought to be regarded as having paid his debt to society, and to be able to resume his life. 

To some extent, the authorities have accepted Khan’s transformation. Over six years ago, in February 2012, they arranged a plea deal whereby, as the Miami Herald explained in September 2016, he “pleaded guilty to serving as a courier of $50,000 linked to the Aug. 5, 2003, terrorist truck bombing of a Marriott hotel in Jakarta, Indonesia, that killed 11 people and wounded dozens of others,” and “also admitted to agreeing to be a suicide bomber in an unrealized plot to murder former Pakistan President Pervez Musharraf.”

By pleading guilty, and also by agreeing to cooperate with the authorities in forthcoming military commission trials — and, specifically, the 9/11 trial, involving Khalid Sheikh Mohammed, the alleged mastermind of the 9/11 attacks — it was agreed that, on sentencing, he would be required to serve a further 13 years. Read the rest of this entry »

The Complete Collapse of Abd Al-Rahim Al-Nashiri’s Military Commission Trial at Guantánamo

Col. Vance Spath and Abd al-Rahim al-Nashiri, both at the heart of a meltdown in the military commission trial system at Guantanamo.Please support my work as a reader-funded journalist! I’m currently trying to raise $2500 (£2000) to support my writing and campaigning on Guantánamo and related issues over the next three months of the Trump administration.





 

I wrote the following article for the “Close Guantánamo” website, which I established in January 2012, on the 10th anniversary of the opening of Guantánamo, with the US attorney Tom Wilner. Please join us — just an email address is required to be counted amongst those opposed to the ongoing existence of Guantánamo, and to receive updates of our activities by email.

It’s three weeks since a judge in Guantánamo’s military commission trial system, Air Force Col. Vance Spath, indefinitely halted proceedings in one of the trials’ only active cases — that of Abd al-Rahim al-Nashiri, a Saudi accused of masterminding the bombing of the USS Cole in 2000, when 17 US sailors were killed.

Carol Rosenberg of the Miami Herald, who first reported the story, announced that Col. Spath “shut down the proceedings because of his inability to get defense lawyers back to the death-penalty case.” In October, three civilian lawyers quit the case for reasons that were not specified, but that observers presumed related to them discovering that they were being spied on by prosecutors — or, at least, by the military authorities at Guantánamo, on whose behalf the prosecutors are working.

I reported this story in November, when, adding insult to injury, Judge Spath briefly imprisoned Brig. Gen. John Baker, the Chief Defense Counsel of the military commissions, for refusing a request by him to reinstate the defense team — Rick Kammen, Rosa Eliades and Mary Spears — even though Brig. Gen. Baker was entirely justified in doing so. The loss of Kammen was a particular blow, as he is a death penalty expert, who has been on the case since al-Nashiri was first charged nearly ten years ago, and, by his own reckoning, has “devoted at least 10,000 hours working on the case, traveled to at least seven foreign countries in trial preparation and to Guantánamo 50 times to meet with Nashiri or appear in court,” as Carol Rosenberg explained in October. Read the rest of this entry »

Ahmed Al-Darbi: Still Held, the Guantánamo Prisoner Who Was Supposed to Have Been Sent Home Two Weeks Ago

Guantanamo prisoner Ahmed al-Darbi, with a photo of his children, in a photo taken several years ago by representatives of the International Committee of the Red Cross.Please support my work as a reader-funded journalist! I’m currently trying to raise $2500 (£2000) to support my writing and campaigning on Guantánamo and related issues over the next three months of the Trump administration.





 

On Friday, Ahmed al-Darbi, a Saudi prisoner at Guantánamo, publicly criticized his government for failing to secure his release from the prison on February 20. The  release date had been agreed last October as part of a plea deal he had initially agreed to in February 2014.

In what the New York Times described as “an unusual statement” conveyed through his lawyer, he said, “It’s shameful. Unlike other countries, the Saudi government never even provided me with an attorney all these years.” He added, “And now my own government is an obstacle to my repatriation. What kind of country abandons its citizens in the custody of another government for 16 years? My country won’t take a step that was agreed on four years ago so that I can finally go home. It’s been my daily dream for four years to see my wife and children.”

Under the terms of his plea deal, al-Darbi admitted that he played a part in a 2002 attack by Al-Qaeda on a French oil tanker, the Limburg, off the Yemeni coast, in exchange for a promise that he would be repatriated, after cooperating further with the US, to serve out the rest of his sentence in Saudi Arabia. As I explained in October, when he was given a 13-year sentence, his sentencing didn’t take place before “because it was dependent upon him providing testimony for the trials of other prisoners, testimony that he undertook [last] summer, providing videotaped testimony against Abd al-Rahim al-Nashiri, who is on trial for his alleged involvement in the bombing off the USS Cole in 2000, and a deposition in the case of Abd al-Hadi al-Iraqi, another prisoner facing a trial by military commission.” Read the rest of this entry »

Reviewing the Guantánamo Art Show in New York That Dared to Show Prisoners As Human Beings, and Led to a Pentagon Clampdown

Artwork by former Guantanamo prisoner Mohammed al-Ansi, shown in 'Ode to the Sea: Art from Guantanamo Bay', an exhibition in New York. This is a screenshot of the home page of the website.Please support my work as a reader-funded journalist! I’m currently trying to raise $2500 (£2000) to support my writing and campaigning on Guantánamo and related issues over the next three months of the Trump administration.





 

I wrote the following article for the “Close Guantánamo” website, which I established in January 2012, on the 10th anniversary of the opening of Guantánamo, with the US attorney Tom Wilner. Please join us — just an email address is required to be counted amongst those opposed to the ongoing existence of Guantánamo, and to receive updates of our activities by email.

Back in November, a disturbing story emerged from Guantánamo — of how a ten-year policy of allowing prisoners to give away art they have made at the prison to their lawyers and, via them, to family members had been stopped by the authorities, in response to an exhibition of prisoners’ artwork at the John Jay College of Criminal Justice, part of the City University of New York, which is known for its criminal justice, forensic science, forensic psychology, and public affairs programs.

The Pentagon had taken exception to an email address provided for people who were “interested in purchasing art” from the artists featured in the show. A Pentagon spokesman, Air Force Maj. Ben Sakrisson, said on November 15 that “all Guantánamo detainee art is ‘property of the US government’ and ‘questions remain on where the money for the sales was going.’”

One problem with this position was that some of the art was by prisoners who are no longer at the prison,which surely raises questions about the extent of the Pentagon’s claimed “ownership” of their work, but the Department of Defense wasn’t interested in having that pointed out. Instead, a spokeswoman at the prison, Navy Cmdr. Anne Leanos, said in a statement that “transfers of detainee made artwork have been suspended pending a policy review,” and Ramzi Kassem, a professor at City University of New York School of Law whose legal clinic represents Guantánamo prisoners, said that one particular prisoner had been told that, if any prisoner were to be allowed to leave Guantánamo (which, crucially, has not happened under Donald Trump), “their art would not even be allowed out with them and would be incinerated instead.” Read the rest of this entry »

Curator of Guantánamo Art Show Responds to Authorities’ Threats to Burn Prisoners’ Work: “Art Censorship and Destruction Are Tactics of Terrorist Regimes, Not US Military”

"Shipwreck," a 2011 painting by Djamel Ameziane, a Guantanamo prisoner released in 2013.Please support my work as a reader-funded journalist! I’m currently trying to raise $2500 (£2000) to support my writing and campaigning on Guantánamo and related issues over the next three months of the Trump administration.





 

Stung by criticism of its paranoid and heavy-handed approach to Guantánamo prisoners’ art, the Pentagon now seems to be involved in a rearguard damage limitation exercise, but it may be too late.

Last week, as I explained here, the Miami Herald reported that “Ode to the Sea: Art from Guantánamo Bay,” a show of prisoners’ art in New York, featuring 36 works by eight prisoners, four of whom are still held, had led the US military to say that it would be stopping prisoners from keeping any artwork they have made, and to threaten to burn it, prompting widespread criticism.

In a powerful op-ed in the New York Times, which I’m cross-posting below, Erin Thompson, a professor of art crime and one of the curators of the show at John Jay College of Criminal Justice, stated, “Art censorship and destruction are tactics fit for terrorist regimes, not for the US military. The art poses no security threat: It is screened by experts who study the material for secret messages before it leaves the camp, and no art by current prisoners can be sold. Guantánamo detainees deserve basic human rights as they await trial. Taking away ownership of their art is both incredibly petty and utterly cruel.” Read the rest of this entry »

Persistent Dehumanization at Guantánamo: US Claims It Owns Prisoners’ Art, Just As It Claims to Own Their Memories of Torture

"Empty glassware" (2015) by Guantanamo prisoner Ahmed Rabbani.Please support my work as a reader-funded journalist! I’m currently trying to raise $2500 (£2000) to support my writing and campaigning on Guantánamo and related issues over the next three months of the Trump administration.





 

I wrote the following article (as “The Persistent Abuse of Guantánamo Prisoners: Pentagon Claims It Owns Their Art and May Destroy It, But U.S. Has Long Claimed It Even Owns Their Memories of Torture“) for the “Close Guantánamo” website, which I established in January 2012, on the 10th anniversary of the opening of Guantánamo, with the US attorney Tom Wilner. Please join us — just an email address is required to be counted amongst those opposed to the ongoing existence of Guantánamo, and to receive updates of our activities by email.

After years of letting Guantánamo prisoners keep the artwork they have made at the prison, subject to security screening, the Pentagon has suddenly secured widespread condemnation for banning its release, and, it is alleged by one of prisoners’ attorneys, for planning to burn it.

The story was first reported on November 16 by Carol Rosenberg of the Miami Herald, and updated on November 20. Rosenberg explained how, for years, prisoners’ art had been released “after inspection by prison workers schooled in studying material for secret messages under the rubric of Operational Security.”

However, as Rosenberg explained, “Ode to the Sea: Art from Guantánamo Bay,” an exhibition in the President’s Gallery of New York’s John Jay College of Criminal Justice until January 16, 2018, which features “paintings and other works by current and former captives” — and “which garnered international press coverage” — “apparently caught the attention of the Department of Defense,” because of an email address provided for people “interested in purchasing art from these artists.” Read the rest of this entry »

Ahmed Al-Darbi, Admitted Terrorist at Guantánamo, Receives 13-Year Sentence Following 2014 Plea Deal

Guantanamo prisoner Ahmed al-Darbi, with a photo of his children, in a photo taken several years ago by representatives of the International Committee of the Red Cross.Please support my work as a reader-funded journalist! I’m currently trying to raise $2500 (£2000) to support my writing and campaigning on Guantánamo and related issues over the next three months of the Trump administration.





 

Last Friday, the US authorities secured a rare success at Guantánamo, when a panel of US military officers gave a 13-year sentence to Ahmed al-Darbi, a Saudi prisoner, for what the New York Times described as “his admitted role in a 2002 attack by Al Qaeda on a French oil tanker off the Yemeni coast.”

Al-Darbi had pleaded guilty in his military commission trial in February 2014, but his sentencing had not taken place until now because it was dependent upon him providing testimony for the trials of other prisoners, testimony that he undertook this summer, providing videotaped testimony against Abd al-Rahim al-Nashiri, who is on trial for his alleged involvement in the bombing off the USS Cole in 2000, and a deposition in the case of Abd al-Hadi al-Iraqi, another prisoner facing a trial by military commission.

Under the terms of the plea deal, as Charlie Savage described it in the New York Times, “the commission could have imposed a sentence of 13 to 15 years.” However, the prosecutors joined with al-Darbi’s defense team to ask for “the minimum available term in light of his extensive assistance to the government.” As Savage put it, al-Darbi “has renounced Islamist ideology and lived apart from the general detainee population for years.” Read the rest of this entry »

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Andy Worthington

Investigative journalist, author, campaigner, commentator and public speaker. Recognized as an authority on Guantánamo and the “war on terror.” Co-founder, Close Guantánamo, co-director, We Stand With Shaker. Also, singer and songwriter (The Four Fathers) and photographer (The State of London).
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