Is Robert Gates Guilty of Perjury in Guantánamo Torture Case?

The announcement on December 1 that President-Elect Barack Obama had retained Robert Gates as defense secretary was intended to demonstrate Obama’s desire for a “big-tent” administration that transcended partisan politics. Gates, who voiced his desire to close the Pentagon’s notorious Guantánamo Bay prison almost as soon as he took over from Donald Rumsfeld in December 2006, had subsequently encountered strong opposition from Vice President Dick Cheney. As a result of this stance, and his subsequent stewardship of the Iraq war, he was regarded as a trustworthy figure who might bridge the Bush and Obama divide.

This role, however, has been called into doubt by a declaration the defense secretary made in a Washington, D.C. District Court filing on December 12 during the habeas review of Guantánamo prisoner Binyam Mohamed. Mohamed’s lawyer, Clive Stafford Smith, says that unless Gates retracts his statement, he could find himself accused of perjury.

Mohamed has said that after being seized in Pakistan in April 2002 and held for three months, he was rendered by the CIA to Morocco, where he was tortured for 18 months.

His claims of torture were upheld by the British High Court in a review this summer, which took place after Mohamed’s lawyers sued the British government for alleged complicity in their client’s rendition and torture. Both the British government and the British High Court accepted that Mohamed “has put forward a prima facie case of torture,” Stafford Smith said.

The court established that Mohamed was “unlawfully rendered from Pakistan to Morocco by the United States authorities,” his lawyers said, and was ”subject to unlawful incommunicado detention and torture during his interrogation there by or on behalf of the United States authorities.” The court also established that Mr. Mohamed was “unlawfully rendered by the United States authorities from Morocco to Afghanistan,” where he was “detained unlawfully and incommunicado” and was “tortured or subject to cruel, inhuman or degrading treatment by or on behalf of the United States authorities in the ‘Dark Prison,’” a secret CIA facility near Kabul.

At the end of this ordeal, Mohamed said he made a number of false confessions about his involvement with al-Qaeda and a plot to detonate a radioactive “dirty bomb” in New York as a direct result of his torture in Morocco and at the hands of CIA agents in Afghanistan.

The Bush administration has never provided any explanation for Mohamed’s whereabouts from July 2002 to May 2004. In June, the US Supreme Court granted Guantánamo prisoners habeas corpus rights. Mohamed’s case was reviewed by Judge Emmet G. Sullivan in a Washington D.C. District Court.

Sullivan set a deadline of October 6 for the government to produce exculpatory evidence relating to the case (in other words, any evidence that tended to disprove the government’s claims). When the time arrived, however, the Justice Department dropped the claim about the “dirty bomb” plot.

At a hearing on October 30, Sullivan said, “That raises a question as to whether or not the allegations were ever true.”

Sullivan continued to press the government for exculpatory evidence. Although the “dirty bomb” plot claim had been dropped, he ordered the Justice Department to disclose any exculpatory evidence relating to the charge. In order to determine the reliability of Mohamed’s statements, he said he wanted to know how the interrogation sessions were conducted.

Sullivan also ordered the Justice Department to secure an affidavit from Gates. The defense secretary swore under penalty of perjury that all exculpatory evidence in Mohamed’s case — including evidence relating to the alleged “dirty bomb” plot — had been provided to Mohamed’s lawyers.

“It is the practice of the United States Government, in preparing factual returns in the Guantánamo Bay detainee habeas cases, to provide petitioners all evidence encountered in the development of the factual return that tends to materially undermine information presented in the return to support the petitioner’s classification as an enemy combatant,” Gates said in his declaration.

“Consistent with this practice, on August 12, 2008, the attorneys preparing the factual return in this case provided Petitioner with evidence encountered in the development of his return that meets this standard,” Gates added.

He also explained that following Sullivan’s ruling, “all exculpatory evidence reasonably available to the government” relating to the “withdrawn allegations” about the “dirty bomb” plot had been provided “on a rolling basis.” He added that 42 documents provided by the British government had also been handed over. “As a result,” he wrote, “the United States Government has turned over all reasonably available evidence that suggests Binyam Mohamed should not be designated as an enemy combatant.”

In a letter sent to the Justice Department on Monday December 15 (which has been seen by The Raw Story), Stafford Smith said he was trying to evaluate whether the defense secretary had deliberately perjured himself, or had been misled.

“I will say that I am extremely disappointed in the declaration that was filed on behalf of Secretary Gates on Friday,” Stafford Smith wrote, adding, “There is no question but that it is false.” He said he couldn’t conclude “whether I would categorize Mr. Gates’ statement as outright perjury, or as a misguided consequence of his reliance on an erroneous definition of the legal terms.”

“The vast majority of material (almost the entirety of the substantive evidence) submitted against Mr. Mohamed consists of statements attributed to him,” and therefore “would qualify as ‘exculpatory’ under Sullivan’s order,” he said.

Stafford Smith says it’s apparent that a wealth of material has not yet been turned over.

“Without going into anything that is classified, the Government has at no point in this case even acknowledged that Mr. Mohamed was rendered by the US to Morocco on July 21, 2002, or that he was held there for 18 months, or that he was abused there,” he wrote. “Nor has the government breathed a word about the five months he subsequently spent being abused and tortured in the Dark Prison in Kabul.”

Stafford Smith said his only interest was to secure justice for his client.

“Both my interest, and that of my co-counsel in the habeas and the military commissions litigation, is to represent our client in the best traditions of US justice,” he wrote. “It pains me to have to say that the government continues to ignore its own obligations, and is risking sanctions.”

“Nothing has changed,” Stafford Smith told The Raw Story last week. “Unless Robert Gates revises his opinions, his declaration will demonstrate that he has been drawn into the defense not of the nation, but of some of the worst excesses of the current administration, involving ‘extraordinary rendition’ and torture, and shameless attempts to cover up all evidence of wrongdoing.”

Gates could not be reached for comment.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, 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 exclusively on The Raw Story (as “Guantánamo lawyer says Gates may have committed perjury”).

For a sequence of articles relating to Binyam Mohamed, see the following: Guantánamo: Torture victim Binyam Mohamed sues British government for evidence (May 2008), Binyam Mohamed’s letter from Guantánamo to Gordon Brown (May 2008), Guantánamo trials: critical judge sacked, British torture victim charged (June 2008), Binyam Mohamed: UK court grants judicial review over torture allegations, as US files official charges (June 2008), Binyam Mohamed’s judicial review: judges grill British agent and question fairness of Guantánamo trials (August 2008), High Court rules against UK and US in case of Guantánamo torture victim Binyam Mohamed (August 2008), In a plea from Guantánamo, Binyam Mohamed talks of “betrayal” by the UK (September 2008), US Justice Department drops “dirty bomb plot” allegation against Binyam Mohamed (October 2008), Meltdown at the Guantánamo Trials (October 2008), Guilt By Torture: Binyam Mohamed’s Transatlantic Quest for Justice (November 2008), A History of Music Torture in the “War on Terror” (December 2008), British torture victim Binyam Mohamed to be released from Guantánamo (January 2009), Don’t Forget Guantánamo (February 2009), The betrayal of British torture victim Binyam Mohamed (February 2009), Hiding Torture And Freeing Binyam Mohamed From Guantánamo (February 2009), Binyam Mohamed’s Coming Home From Guantánamo, As Torture Allegations Mount (February 2009), Binyam Mohamed’s statement on his release from Guantánamo (February 2009), Who Is Binyam Mohamed, the British resident released from Guantánamo? (February 2009), Seven Years of Torture: Binyam Mohamed Tells His Story (March 2009), Binyam Mohamed’s Plea Bargain: Trading Torture For Freedom (March 2009), Guantánamo, Bagram and the “Dark Prison”: Binyam Mohamed talks to Moazzam Begg (March 2009), Obama’s First 100 Days: Mixed Messages On Torture (includes the Jeppesen lawsuit, May 2009), UK Government Lies Exposed; Spy Visited Binyam Mohamed In Morocco (May 2009), Daily Mail Pulls Story About Binyam Mohamed And British Spy (May 2009), Government Bans Testimony On Binyam Mohamed And The British Spy (May 2009), More twists in the tale of Binyam Mohamed (in the Guardian, May 2009), Did Hillary Clinton Threaten UK Over Binyam Mohamed Torture Disclosure? (May 2009), Outsourcing torture to foreign climes (in the Guardian, May 2009), Binyam Mohamed: Was Muhammad Salih’s Death In Guantánamo Suicide? (June 2009), Miliband Shows Leadership, Reveals Nothing About Torture To Parliamentary Committee (June 2009).

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), After 7 Years, Judge Orders Release of Guantánamo Kidnap Victims (November 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).