Former Guantánamo Prisoner David Hicks Appeals His 2007 Conviction for Non-Existent War Crime

Ever since the conservative court of appeals in Washington D.C. delivered an extraordinary ruling last October, vacating one of the only convictions in the military commission trial system introduced for prisoners at Guantánamo, it has only been a matter of time before other appeals would be lodged.

Last Tuesday, November 5, the first man convicted in the trials — the Australian citizen David Hicks, who agreed to a plea deal in March 2007, on the basis that he would be returned to Australia to serve a seven-month sentence — lodged an appeal with the US Court of Military Commission Review, “arguing for a summary dismissal of the conviction,” as the Sydney Morning Herald described it, “because the offence was not a war crime at the time Mr. Hicks was detained, and his guilty plea was made under duress because of his detention, torture and abuse at Guantánamo.”

Just seven convictions have been secured in Guantánamo’s military commission system (between March 2007 and February 2012), which has struggled — and failed — to achieve any kind of credibility since George W. Bush’s Vice President, Dick Cheney, ill-advisedly dragged the commissions from the history books in November 2001. Ruled illegal by the Supreme Court in June 2006, they were then revived by Congress, and revived by Congress a second time under President Obama in 2009, despite warnings by senior administration lawyers that convictions would almost certainly be overturned on appeal. Read the rest of this entry »

Torture: The Elephant in the Room at Guantánamo’s Military Commissions

For seven and a half years now, I have watched as the United States has tried and failed to make its trial system at Guantánamo — the military commissions — function in a way that has any kind of legitimacy.

That, however, is impossible, because the trials involve made-up war crimes, invented by Congress, and, as we see on a regular basis when pre-trial hearings are held in the cases of Khalid Sheikh Mohammed (KSM) and four other men accused of involvement in the 9/11 attacks, because there is an unresolvable tension at the heart of the most serious trials — those involving the “high-value detainees,” like KSM and his co-defendants, and also Abd al-Rahim al-Nashiri, another “high-value detainee” charged with involvement in the bombing of the USS Cole in 2000, all of whom were held — and tortured — in secret “black sites” run by the CIA in countries including Thailand and Poland.

This tension was highlighted in “You Can’t Gag Somebody and Then Want to Kill Them,” an article for the Huffington Post last week by Katherine Hawkins, a researcher and lawyer who recently worked as the Investigator for the Constitution Project’s Task Force on Detainee Treatment, whose powerful report I discussed here. Read the rest of this entry »

Radio: Andy Worthington Discusses the Ongoing Injustice of Guantánamo with Chuck Mertz on “This Is Hell”

On Saturday, I was delighted to talk about Guantánamo past, present and future with Chuck Mertz, who hosts an excellent four-hour radio show, “This is Hell,” every Saturday on WNUR 89.3FM Chicago. Chuck and I have spoken several times in the seven and a half years since I began researching and writing about Guantánamo on a full-time basis, and we had a very thorough discussion on Saturday, which is available here. Scroll down to listen to my 45-minute interview, after interviews with Ann Jones, Juan Cole and Dana Becker, or listen to the whole show here, which also includes Jim Naureckas, Trevor Ewen and Jeff Dorchen.

Our latest discussion was triggered by Chuck’s horrified appreciation of my most recent article for Al-Jazeera, “At Guantánamo, a microcosm of the surveillance state,” in which I discussed the latest scandal to rock the permanently troubled military commission trial system at Guantánamo — a technical upgrade that, through incompetence, or through an aspect of the sweeping surveillance state exposed by Edward Snowden earlier this year, led to 540,000 confidential emails sent by military defense attorneys at Guantánamo ending up with prosecutors, and seven gigabytes of files disappearing completely.

This, for the record, is how Chuck described the show:

If Franz Kafka had access to 21st century technology, we could have booked him on the show to talk about the military commission trials of Guantánamo detainees. Defense files are given to the prosecution, the FBI spies on meetings between lawyers, and charges are sought against only 2.5% of total detainees at the site. Kafka wasn’t available to comment, but investigative journalist Andy Worthington knows the alienation and farcical nature of authority better than anyone outside Camp X-Ray’s walls. Read the rest of this entry »

Read My Latest Article for Al-Jazeera on Guantánamo’s Military Commissions and the Surveillance State

Dear friends and supporters, I hope you have time to read my latest article for Al-Jazeera, entitled, “At Guantánamo, a microcosm of the surveillance state,” in which I look at the latest scandal to derail the military commission trial system at Guantánamo, exposed in a pre-trial hearing in the case of Khalid Sheikh Mohammed and four the men accused of involvement in the 9/11 attacks — a computer problem that has led to over half a million confidential defense emails being handed over to the prosecution, and other files disappearing completely.

In light of the revelations of mass surveillance made public by Edward Snowden in June, the problems at Guantánamo can be seen as part of a bigger picture, even though the main tension at Guantánamo concerns torture — the government’s wish to hide its use on the “high-value detainees,” and the defense’s mission to expose it — rather than excessive surveillance as a matter of course.

I’m delighted to have had the opportunity to write for Al-Jazeera about the military commissions, which I’ve been writing about for seven and a half years. I got to briefly run through the history of the commissions in my article, reminding me that, when I first began researching Guantánamo in 2006, for my book The Guantánamo Files, the commissions were already regarded as a disgrace, a torture-laundering farce dragged from the history books by Vice President Dick Cheney, which had struggled to establish any credibility whatsoever. Furthermore, this situation didn’t improve after the Supreme Court found the commissions illegal, in June 2006, and Congress then brought them back to life with a raft of invented war crimes. My first article about the commissions was in June 2007, and the broken system exposed there continues to be broken, and to shame America. Read the rest of this entry »

Meet the Guantánamo Prisoner Who Wants to be Prosecuted Rather than Rot in Legal Limbo

Throughout the spring and summer, while the prison-wide hunger strike at Guantánamo raged, taking up most of my attention, as I reported prisoners’ accounts, and campaigned to get President Obama to release the 86 prisoners cleared for release in January 2010 by his own inter-agency Guantánamo Review Task Force, I missed some other developments, which I intend to revisit over the next few weeks, beginning with an article by Jess Bravin for the Wall Street Journal in July.

Bravin, the Supreme Court correspondent for the Wall Street Journal and the author of the acclaimed book The Terror Courts: Rough Justice at Guantanamo Bay, wrote an article entitled, “Guantánamo Detainee Begs to Be Charged as Legal Limbo Worsens,” which perfectly captured the Alice in Wonderland-style absurdity of the prison, eleven and half years after it opened, with the remaining 164 prisoners no closer to securing justice than they were when George W. Bush set up the prison, which, at the time, was intended to be a place where they could be held without any rights whatsoever.

Highlighting one aspect of this ongoing injustice, Bravin looked at the case of Sufyian Barhoumi, identified in his article as Sufiyan Barhoumi, who, as he described it, “has decided to plead guilty to war crimes, throw himself on the mercy of the court and serve whatever sentence a US military commission deems just.” As Bravin added, however, “There’s just one problem: The Pentagon refuses to charge him.” Read the rest of this entry »

US Military Admits Only 2.5 Percent of All Prisoners Ever Held at Guantánamo Will Be Tried

So it’s official, then. Eleven and a half years after the “war on terror” prison opened at Guantánamo, the maximum number of prisoners that the US military intends to prosecute, or has already prosecuted, is 20 — or just 2.5 percent of the 779 men held at the prison since it opened in January 2002.

The news was announced on Monday June 10 by Army Brig. Gen. Mark Martins, the chief prosecutor for the military commissions at Guantánamo, and it is a humiliating climbdown for the authorities.

When President Obama appointed an inter-agency task force to review the cases of the remaining Guantánamo prisoners, which issued its report in January 2010, the task force recommended that 36 of the remaining prisoners should be tried.

Just five of the 36 have since been to trial — one in the US, and four through plea deals in their military commissions at Guantánamo. Another man — Ali Hamza al-Bahlul — had already been tried and convicted, in the dying days of George W. Bush’s second term, and two others had been sent home after their trials — David Hicks after a plea deal in March 2007, and Salim Hamdan after a trial in July 2008 — making a total of 39 prosecutions, or intended prosecutions, after eleven and a half years of the prison’s existence. That was just 5 percent of the men held throughout Guantánamo’s history, but now that figure, which was, in itself, an extremely poor reflection on the efficacy of the prison and its relationship to any acceptable notions of justice, has been halved.

As Reuters described it, Brig. Gen. Martins explained that the number set by the task force was “ambitious” in light of two rulings last October and in January this year by judges in the court of appeals in Washington D.C. Read the rest of this entry »

Guantánamo Hunger Strike: Obama Administration Hints at Progress on Releasing Yemenis

100 days after the majority of the remaining 166 prisoners in Guantánamo embarked on a hunger strike, and after a weekend of actions in the US, the UK and elsewhere to highlight the continuing injustice of the prison, the world is waiting — again — to hear from President Obama.

As news of the hunger strike filtered out of the prison in late February, and, throughout March, spread like wildfire throughout the world’s media, attracting criticism of the administration from the International Committee of the Red Cross and the United Nations, as well as critical coverage in the US, President Obama remained silent.

Three weeks ago, President Obama finally broke his silence, delivering a speech at a news conference in which, as I explained here, he eloquently explained why Guantánamo is such an abomination, but failed to accept his own responsibility for the prison’s continued existence, blaming Congress and claiming that all he could do was to go back to lawmakers to seek their cooperation.

Whilst it is certainly true that lawmakers have raised huge obstacles to prevent the release of prisoners and the closure of the prison, it is also true that President Obama personally imposed a ban on releasing any of the cleared Yemenis who make up 56 of the 86 men still held whose release was recommended by the President’s own inter-agency task force back in January 2010, following a failed airline bomb plot on Christmas Day 2009, which was hatched in Yemen. Read the rest of this entry »

On Terrorism, America Has Lost Its Way

Last week at Guantánamo, a farcical dance played out, as it does every six months or so. Representatives of the US mainstream media — and other reporters from around the world — flew to the US naval base at Guantánamo Bay, Cuba, to witness the latest round of the seemingly interminable pre-trial hearings in the cases of Khalid Sheikh Mohammed and four other men accused of masterminding, or otherwise facilitating the terrorist attacks of September 11, 2001 on New York and Washington D.C.

The farce of the Guantánamo trials is, by now, well established, although last week’s hearings introduced the novelty of a hidden hand, unknown even to the judge, flicking an invisible switch to silence potentially embarrassing testimony, and the proceedings also took place against the backdrop of two courtroom appeals that have dealt savage blows to the claimed legitimacy of the commissions.

In the case of the 9/11 trial, a permanent feature is the seemingly insoluble tussle between the prosecution and the defense. On the one hand are the attorneys for the accused, whose job is to try and ensure that their clients do not receive unfair trials. This involves attempting, incessantly, to point out the elephant in the room — the fact that all the men were held for many years in “black sites” run by the CIA, where they were subjected to torture, approved at the highest levels of the government during the Bush administration, even though torture is a crime. On the other hand are the prosecutors, whose job, above all, appears to be to hide all mention of torture. In the middle is the judge — in the case of the “high-value detainees,” Army Col. James L. Pohl, who replaced Marine Col. Ralph Kohlmann as the Chief Presiding Officer for the Military Commissions on January 6, 2009. Read the rest of this entry »

Will Guantánamo Ever Be Closed?

Nearly eleven years after the Bush administration’s “war on terror” prison opened on the US naval base at Guantánamo Bay, Cuba, its much-mooted closure seems as remote as ever.

Last week, there were encouraging noises, when Sen. Dianne Feinstein (D-CA), the chairwoman of the Senate Intelligence Committee, presented a report prepared by the Government Accountability Office (GAO), looking at the feasibility of housing prisoners in the US. The report found that there were 104 suitable facilities; 98 run by the Department of Justice, and six by the military. Releasing the report, Sen. Feinstein said, “This report demonstrates that if the political will exists, we could finally close Guantánamo without imperiling our national security.”

On the military side, there are three Naval brigs — at Charleston, South Carolina, Chesapeake, Virginia, and Miramar, California — as well as the correction facilities at Fort Leavenworth, Kansas and Lewis-McChord in Washington, and the Disciplinary Barracks at Leavenworth. In total, these facilities are almost half-empty. Read the rest of this entry »

Conservative Judges Demolish the False Legitimacy of Guantánamo’s Terror Trials

When is a war crime not a war crime? When it is invented by the executive branch and Congress, and implemented for six years until a profoundly Conservative appeals court strikes it down.

The invented war crime is “providing material support to terrorism,” and on October 16, 2012, a panel of three judges in the D.C. Circuit Court (the Court of Appeals in Washington D.C.) threw out the conviction of Salim Hamdan, a driver for Osama bin Laden, who had received a five and a half year sentence for “providing material support to terrorism” at the end of his trial by military commission in August 2008 (although he was freed just five months later, as his sentence included time already served).

In its ruling, the court stated, “When Hamdan committed the conduct in question, the international law of war proscribed a variety of war crimes, including forms of terrorism. At that time, however, the international law of war did not proscribe material support for terrorism as a war crime.”

For anyone who has followed the history of the military commissions in any depth, the result was not completely unexpected. Revived by the Bush administration in November 2001, specifically for trying prisoners seized in the “war on terror,” the commissions were struck down by the Supreme Court in June 2006, but were then revived by Congress, when “providing material support to terrorism” and “conspiracy” were included as war crimes, even though there was no precedent for doing so. Read the rest of this entry »

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Andy Worthington

Investigative journalist, author, filmmaker, photographer and Guantanamo expert
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