41 Attorneys from the Cincinnati Area Call on Donald Trump to Close Guantánamo

Campaigners from Witness Against Torture and other organizations call for the closure of Guantanamo outside the White House on January 11, 2012, the 10th anniversary of the prison's opening.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 week, 41 attorneys from the Cincinnati area, in Ohio, wrote a column for the Cincinnati Enquirer calling for Donald Trump to close Guantánamo. Founded in 1841, the paper is the last surviving daily newspaper in Greater Cincinnati and Northern Kentucky, and is traditionally regarded as a a conservative, Republican-leaning newspaper.

Nevertheless, on August 26 it gave space to the 41 lawyers, including some who have represented Guantánamo prisoners over the 16 long years of the prison’s history, for them to argue that the 41 men still held at Guantánamo should either be freed or charged and tried in federal court.

It’s a position that I agree with, as regular readers will know, and it’s reassuring to see so many lawyers come together to make such a definitive statement in the face of Donald Trump’s refusal to acknowledge that the prison is, as the lawyers describe it, “a great shame that hangs over the American legal system.”

Imagine if, across the country, thousands and thousands of lawyers got together to repeat this message, and to send it out through regional and national media.

I’d love to see it happen, and the lawyers themselves close their column by stating, “Join us in calling on bar associations, elected officials and fellow citizens in closing this awful stain on our legal system and our country,” but in the meantime I’m delighted to cross-post their article, in the hope that it gets out to interested parties who may have missed it. 

The article notes that, because the US Constitution applies at Guantánamo, the men should be freed or tried, because “[o]ne bedrock principle of due process is that extended detention without affording a trial for the individual is illegal.”

However, as they also make clear, the trial system established at Guantánamo — the military commissions — is irredeemably broken, as the experiences of one of their number, Rick Kammen, lay bare. Kammen worked on the commissions as a defense lawyer until he was obliged to resign because, fundamentally, the government was spying on the defense teams, and there was no effective way of challenging them.

I hope you have time to read the article, and will share it if you find it persuasive — and if you can help with getting or lawyers on board, let’s do it! If 41 lawyers can do this in Cincinnati, one for each prisoner still held, we surely ought to be able to get 5,000 lawyers across the country to say to Donald Trump, “No more! Close Guantánamo now!” — or perhaps, more appropriately, 6,081 lawyers, one for each day Guantánamo has been open.

Due process: Guantánamo detainees should be released
By Robert Newman and Michael O’Hara, the Cincinnati Enquirer, August 26, 2018

There is a great shame that hangs over the American legal system: the injustice of the Guantánamo detainees. Today, 41 Muslim men remain at Guantánamo. Thirteen have cases in the military commission system. The remainder have been held for up to 16 years without charges filed against them. Five of these have been cleared for transfer, meaning that the Pentagon and the intelligence agencies have agreed that they pose no security threat. Many of the 41 detainees have been tortured at either CIA “black sites” or at Guantánamo itself.

President George W. Bush released 532 detainees by the end of his second term, and President Barack Obama released 197 and sought to close Guantánamo, but was prevented by congressional action. Nine detainees have died since the prison opened, several by suicide. Now President Donald Trump has vowed that he would “absolutely authorize” torture techniques such as waterboarding on the grounds that terrorism suspects “deserve it,” and that he would fill Guantánamo back up with “bad dudes.”

Since the United States claims Guantánamo Bay pursuant to a 1903 lease authorizing a naval station and coaling station which later became a “perpetual lease,” the U.S. Constitution extends to this property and its inhabitants. One bedrock principle of due process is that extended detention without affording a trial for the individual is illegal.Sixteen years is beyond any shred of due process. Even a year cannot be justified. For this reason, all 41 detainees should be released.

Yet there are other reasons for the releasing of the detainees. Two of them, Toffiq Al-Bihani and Abdul Latif Nasser have been approved for transfer to other countries who are willing to receive them. Their continued detention is senseless and punitive.

Twenty-eight of the detainees have not even been charged. How can someone be imprisoned with no trial, no judgment of guilt and no charges? Such conduct by our government and military courts utterly betrays the constitutional promise of due process. Honoring this fundamental principle would demand immediate release of these unconstitutionally detained individuals.

Some commentators have suggested the that military commissions should be allowed to continue and that some or all of the detainees should be tried before these commissions. A criminal defense attorney from Indianapolis, Richard Kammen, spent nine years assisting with the defense of Abdul Rahim Al-Nashiri, a Guantánamo detainee charged with involvement in the bombing of the USS Cole. Al-Nashiri was charged in 2003. He has yet to be tried.

At the 2018 Kentucky Bar Annual Convention, Kammen described how it became impossible to provide meaningful legal representation due to restrictions imposed by the military commissions that offend the principles of due process we as Americans take for granted. He described how guards confiscate privileged legal materials from the cells of the detainees and how the military prosecutors read defense counsel’s correspondence to their clients.

The commander of the prosecution issued an order requiring military officials to review all legal correspondence between defense counsel and their clients, and counsel who refuse would not be allowed to visit their clients. Kammen and his colleagues discovered that the rooms in which defense counsel had been meeting with their clients for years were wired with microphones disguised as smoke detectors.

The government also intruded into defense counsels’ emails. In 2013, it was discovered that the FBI had recruited an informant on a defense legal team. When the military judge prohibited Kammen and his legal team from informing their client of concerns about attorney-client confidentiality on grounds that would result in disclosing classified information, Kammen decided that he could not ethically continue to represent his client, as he was prevented by our government and the military courts from providing constitutionally adequate representation. Thus, he was ethically compelled to withdraw.

Moreover, these same military commissions have denied detainees any effective opportunity to challenge the government’s use of detainees’ confessions that were obtained through torture and “enhanced interrogation” methods that would never survive scrutiny in any court in the United States. Counsel for detainees have been denied access to evidence relating to the circumstances under which confessions were obtained.

The government and military commissions have done this under the shadowy rubric “national security” or protection of “classified information.” Everything about the conduct of these military commissions is antithetical to the fundamental principles of the right to effective assistance of counsel and to a fair trial, rights that have long since been embedded in the Fifth and Sixth Amendments to our Constitution.

It should be obvious to any lawyer or jurist that trials comporting with due process are not possible with military commissions. To the extent that the government can provide any justification for detaining anyone, those people should be brought to American soil and tried in federal courts. The government is reluctant to do this because of the scrutiny that would necessarily focus on statements obtained from the detainees by the most brutal forms of interrogation yet devised.

This is not American justice. This is not America. We are lawyers, and we are deeply offended by the injustices of Guantánamo. Join us in calling on bar associations, elected officials and fellow citizens in closing this awful stain on our legal system and our country.

This column was jointly written by the following 41 Cincinnati-area attorneys: Robert B. Newman; Michael J. O’Hara; Timothy M. Burke; Nora Dean Burke; Louis H. Sirkin; Nicholas J. DiNardo; John L. Heilbrun; William R. Gallagher; Joseph J. Dehner; Maurice O. White; Alphonse A. Gerhardstein; Richard Ganulin; Stephen R. Felson; Marc D. Mezibov; Kathleen M. Brinkman; Lisa T. Meeks; Elizabeth Asbury Newman; John Woliver; Richard Boydston; Elizabeth A. McCord; John D. Holshuh, Jr.; Sherri Goren Slovin; Phyllis G. Bossin; Barbara J. Howard; Peter L. Cassady; Michael T. Mann; David S. Mann; William A. DeCenso; Erin M. Heidrich; Mark W. Napier; Noel M. Morgan; Matthew W. Fellerhoff; Amanda R. Toole; Joseph H. Feldhaus; Lucian J. Bernard; Terence D. Bazeley; Carrie H. Dettmer Slye; Carla L. Leader; Danielle C. Colliver; Elaine J. Fink; James B. Robinson; and Amy L. Detisch.

Andy Worthington is a freelance investigative journalist, activist, author, photographer, film-maker and singer-songwriter (the lead singer and main songwriter for the London-based band The Four Fathers, whose music is available via Bandcamp). He is the co-founder of the Close Guantánamo campaign (and see the latest photo campaign here) and the successful We Stand With Shaker campaign of 2014-15, and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (click on the following for Amazon in the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here — or here for the US), and for his photo project ‘The State of London’ he publishes a photo a day from six years of bike rides around the 120 postcodes of the capital.

In 2017, Andy became very involved in housing issues. He is the narrator of a new documentary film, ‘Concrete Soldiers UK’, about the destruction of council estates, and the inspiring resistance of residents, he wrote a song ‘Grenfell’, in the aftermath of the entirely preventable fire in June 2017 that killed over 70 people, and he also set up ‘No Social Cleansing in Lewisham’ as a focal point for resistance to estate destruction and the loss of community space in his home borough in south east London.

To receive new articles in your inbox, please subscribe to Andy’s RSS feed — and he can also be found on Facebook (and here), Twitter, Flickr and YouTube. Also see the six-part definitive Guantánamo prisoner list, The Complete Guantánamo Files, the definitive Guantánamo habeas list, the full military commissions list, and the chronological list of all Andy’s articles.

Please also consider joining the Close Guantánamo campaign, and, if you appreciate Andy’s work, feel free to make a donation.

The Latest Scandal of the Military Commissions at Guantánamo: A Death Penalty Case Without a Death Penalty Lawyer

The US flag, seen through barbed wire, 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.





 

The military commissions at Guantánamo, since they were ill-advisedly dragged out of the history books by the Bush administration, have persistently failed to demonstrate anything more than a tangential relationship to justice, as I have been reporting for over ten years. Last September, I summarized the trial system’s many failures in an article entitled, Not Fit for Purpose: The Ongoing Failure of Guantánamo’s Military Commissions.

Under Donald Trump, there has been no improvement. Pre-trial hearings drag on, seemingly interminably, as defense lawyers seek to expose evidence of the torture of their clients in CIA “black sites,” while prosecutors, for the government, do everything they can to hide that evidence. Earlier this month, however, as I explained in a recent article, a new low point was reached when, astonishingly, the chief defense counsel, Brig. Gen. John Baker, was briefly imprisoned for defending the right of three civilian defense attorneys to resign after they found out that the government had been spying on them.

The loss of the attorneys led to a disgraceful situation in which the government insisted on limping on with the capital case — against Abd al-Rahim al-Nashiri, a victim of CIA torture, and the alleged mastermind of the bombing of the USS Cole in 2000 — even though it is illegal to pursue a capital case without a qualified death penalty lawyer on board. That role was filled by Rick Kammen, who had been on al-Nashiri’s case for nine years. 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 »

Detailed Los Angeles Review of Books Article Asks, “What Are We Still Doing in Guantánamo?”

A prisoner being moved by guards in Camp Six at Guantanamo (Photo: J. Moore, Getty Images).Please support my work! 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.





 

As we approach the 16th anniversary of the terrorist attacks of September 11, 2001, those of us who care about justice, the rule of law and a sense of proportion will also be attempting to remind the world that we’re just four months away from another 16th anniversary, directly released to 9/11 — the opening of the prison at Guantánamo Bay, which took place on January 11, 2002.

Ostensibly a prison for “the worst of the worst,” seized in the “war on terror” that the Bush administration declared in the wake of the 9/11 attacks, Guantánamo has, instead, become, to those who care, a symbol of everything that is wrong with the US response to 9/11 — a place where men seized through dubious intelligence, or bought for bounty payments from America’s allies in Pakistan and Afghanistan, were tortured or abused to make false statements incriminating themselves or their fellow prisoners, and are held, mostly without charge or trial, in defiance of domestic and international laws and treaties establishing how prisoners can only be held if they are criminal suspects facing trials, or prisoners of war protected by the Geneva Conventions,

The Guantánamo prisoners are neither, and are, still, men held essentially without any rights, although unfortunately most people — or most Americans, in particular — neither know nor care, and 15 years and eight months after the prison opened, the 41 men still held are at the mercy of the third president in charge of their fate — Donald Trump, who, rather than accepting that Guantánamo is an aberration that must be closed (as George W. Bush eventually realized, and Barack Obama knew all along, despite lacking the political will to deliver on his promise to close it), intends to officially keep it open, and, if he can manage it, to send new prisoners there — a plan that anyone rational abhors, although, unfortunately, rational thought is currently quite severely endangered, especially, it seems, in the Republican Party. Read the rest of this entry »

Guantánamo’s Military Commissions: More Chaos in the Cases of Abd Al-Rahim Al-Nashiri and Majid Khan

"High-value detainee" Majid Khan, photographed at Guantanamo in 2009.Please support my work! I’m currently trying to raise $2700 (£2000) to support my writing and campaigning on Guantánamo for the next three months.

 

At Guantánamo, as I have been reporting recently, the military commissions, a broken trial system ill-advisedly dragged out of historical retirement for prisoners seized in the “war on terror,” have reconvened after a summer break — see my articles Not Fit for Purpose: The Ongoing Failure of Guantánamo’s Military Commissions and Chief Defense Counsel of Guantánamo’s Military Commissions Calls Them a “Poisoned Chalice,” a Betrayal of the Constitution and the Law. Also see my updated Full List of Prisoners Charged in the Military Commissions at Guantánamo.

That the commissions are a poor substitute for justice can readily be understood from the fact that only eight convictions have been secured, and four of those have subsequently been overturned by appeals court judges, and from the realization that the only ongoing cases are almost permanently deadlocked because, on the one hand, prosecutors seek to hide the fact that the men facing trials were tortured, while on the other those defending the men insist that fair trial cannot take place until the torture is openly discussed.

The failures of the commissions have also been made clear in a recent appeals court ruling in the case of Abd al-Rahim al-Nashiri, accused of involvement in the attack on the USS Cole in 2000, and in a hearing at Guantánamo for Majid Khan, who first agreed to a plea deal over four and a half years ago, in February 2012, but who has not yet been sentenced. Read the rest of this entry »

Not Fit for Purpose: The Ongoing Failure of Guantánamo’s Military Commissions

"End Guantanamo commissions: use fair trials" - an Amnesty International supporter outside the White House.

Please support my work! I’m currently trying to raise $2800 (£2100) to support my writing and campaigning on Guantánamo for the next three months.

 

In the 15 years since the terrorist attacks of September 11, 2001, the United States has systematically undermined many of the key values it claims to uphold as a nation founded on and respecting the rule of law, having embraced torture, indefinite imprisonment without charge or trial, trials of dubious legality and efficacy, and extra-judicial execution.

The Bush administration’s torture program — so devastatingly exposed in the executive summary of the Senate Intelligence Committee’s report into the program, published in December 2014 — no longer exists, but no one has been held accountable for it. In addition, as the psychologist and journalist Jeffrey Kaye has pointed out, although ostensibly outlawed by President Obama in an executive order issued when he took office, the use of torture is permitted, in particular circumstances, in Appendix M of the Army Field Manual.

When it comes to extrajudicial execution, President Obama has led the way, disposing of perceived threats through drone attacks — and although drones were used by President Bush, it is noticeable that their use has increased enormously under Obama. If the rendition, torture and imprisonment of those seized in the “war on terror” declared after the 9/11 attacks raised difficult ethical, moral and legal questions, killing people in drone attacks — even in countries with which the US is not at war, and even if they are US citizens — apparently does not trouble the conscience of the president, or the US establishment as a whole. Read the rest of this entry »

Another Torture Victim on Trial at Guantánamo

In the last two weeks, the “war on terror” prison at Guantánamo Bay enjoyed a brief resurgence of interest as pre-trial hearings took place in the cases of Khalid Sheikh Mohammed and four other men accused of directing and supporting the terrorist attacks on September 11, 2001, and in the case of Abd al-Rahim al-Nashiri, a Saudi national accused of masterminding the attack on the USS Cole off the coast of Yemen in October 2000, in which 17 US sailors were killed, when suicide bombers blew up a bomb-laden boat beside the warship.

Guantánamo has largely been ignored during the Presidential election campaign, even though 166 men still languish there, and over half of them — 86 men in total — have been cleared for release for at least three years (although in many cases for far longer), and one of these men — Adnan Latif, a Yemeni — died in September, eight years after the authorities first decided that they had no interest in holding him any longer.

The ongoing detention of these men ought to be a major news story, but instead it is generally overlooked, and the media’s attention is largely reserved for pre-trial hearings in the cases of the men mentioned above, even though these hearings are generally inconclusive, and involve prosecutors following the government’s position — which focuses on hiding all mention of torture by US forces — while the prisoners’ defense teams argue that justice cannot be delivered if the torture of these men is not mentioned. 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.
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