The Dying Days of the Guantánamo Trials

With less than two weeks until the Bush administration leaves office, Andy Worthington, author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison, reports on developments — or the lack of them — during the last month in the Military Commissions, the much-criticized trial system for “terror suspects” that was conceived by Vice President Dick Cheney and his close advisers in the wake of the 9/11 attacks.

Since the last blowout at Guantánamo on December 8, when dozens of reporters and relatives of victims of the 9/11 attacks watched as Khalid Sheikh Mohammed (KSM) and his alleged co-conspirators tried — and failed — to plead guilty so that they could die martyr’s deaths, few observers have witnessed the Commissions go through the motions in the Bush administration’s last days, like a preprogrammed machine, unaware that major changes are afoot, or, less charitably, like a decapitated chicken on its last round of the farmyard.

“We serve the sitting president and will continue to do so until the president-elect is inaugurated, at which time we will implement whatever policies are enacted by the next president,” Navy Cmdr. J.D. Gordon, a Pentagon spokesman, explained last month.

An ignoble history

The Military Commissions have rarely attracted the media attention that a novel, flagship program to try “terror suspects” should have attracted, even though the administration has persistently tried to sell Guantánamo as a place full of the world’s toughest terrorists, rather than what it really is: a place where a few dozen members of a small, fanatical and deeply secretive terror network have been vastly outnumbered by Taliban foot soldiers, recruited to fight an inter-Muslim civil war in Afghanistan that began long before 9/11 and had no connection to al-Qaeda or the 9/11 attacks, or completely innocent men, sold for bounty payments by the United States’ opportunistic allies in Afghanistan and Pakistan.

The rot was there from the beginning, as military defense lawyers, appointed by the government, realized to their horror that the Military Commissions were designed to secure convictions and to facilitate the use of evidence obtained through torture. The entire system should have died in June 2006, when the Supreme Court ruled it illegal, but when Congress revived the monster that fall, its new-found legitimacy was soon punctured when the first prisoner to face a trial, the Australian David Hicks, was repatriated in May 2007 following a plea bargain negotiated by Vice President Dick Cheney as a political favor to his ailing ally, Prime Minister John Howard.

Such cynicism has always been readily apparent when it comes to releasing prisoners from the general population, but for the first trial by Military Commission to be undermined in such a manner appeared to take hypocrisy to a new level, even though a trial, had it proceeded, would have been hard-pushed to present Hicks as a terrorist. Hyperbole of this kind was possible in the early days of the “War on Terror,” when the “American Taliban” John Walker Lindh received a 20-year sentence, but as John Howard found to his chagrin, by 2007 the public was less willing to indulge such hyperbole. As I discovered while writing The Guantánamo Files, far from being caught on the battlefield, Hicks was actually betrayed by an Afghan van driver as he fled northern Afghanistan, trying in vain to hide his blue eyes and blond hair, and was then brutalized mercilessly in US hands.

In the last seven months, as the Bush administration sought to construct a “War on Terror” legacy that would not consist solely of hubris and ridicule, the pressure on the Commissions to press ahead with trials intensified. To a small degree, the ploy was successful. The arraignment and pre-trial hearings of KSM et al. attracted widespread attention in June, September and December, and the trial of Salim Hamdan, a driver for Osama bin Laden, also drew a flurry of interest in the summer — although this was largely mitigated when Hamdan received an extraordinarily lenient sentence (freeing him by the end of the year), which effectively destroyed Guantánamo’s rationale.

There was further bad news in September, when, as a result of his crusading pro-prosecution bias, the Commissions’ legal adviser, Brig. Gen. Thomas Hartmann, was sacked after being disqualified by three military judges, and Lt. Col. Darrel Vandeveld, a prosecutor and a previously staunch supporter of the regime, resigned after seeking advice from a Jesuit peace activist, and left cursing the administration for its deliberate suppression of evidence vital to the defense in the case of the Afghan prisoner Mohamed Jawad. Although Jawad was accused of a grenade attack on a jeep containing US soldiers, it transpired that he was a juvenile when seized, was drugged at the time of the attack by the insurgents who had tricked him into being recruited, and had been tortured in Afghan custody until he confessed. One of Vandeveld’s discoveries was that two other men, neither of whom is held at Guantánamo, had also confessed to the attack.

However, while these stories were widely reported — and there was also sporadic interest in the baleful saga of the Canadian Omar Khadr, the other juvenile facing a trial by Military Commission — the media as a whole (with the valiant exceptions of the Miami Herald’s Carol Rosenberg, the Toronto Star’s Michelle Shephard and Jane Sutton of Reuters) showed little appetite for covering the cases of the other 16 prisoners put forward for trial. This ability to find almost anything else more newsworthy was aptly demonstrated on the eve of the Presidential election when a prisoner named Ali Hamza al-Bahlul received a life sentence — ostensibly to be served in Guantánamo in total isolation — after a one-sided show trial in which, under the Commissions’ deeply flawed rules, he had been allowed to mount no defense whatsoever.

Derailing the cases of Mohamed Jawad and Omar Khadr

Just two days after the last appearance of the KSM circus, when most of the reporters had gone home, Army Col. Stephen Henley, the judge in Mohamed Jawad’s case, “indefinitely delayed” Jawad’s trial, as Jane Sutton explained. The trial had been scheduled to begin on January 5, but Henley gave the prosecution an unspecified amount of time to work out how to appeal his earlier decision to exclude the confession obtained by the Afghan authorities shortly after Jawad’s capture in Kabul in December 2002, because it was “obtained through death threats that constituted torture,” and another confession, which he made to US interrogators the following day, because that too was the “fruit of that torture.” Whether the prosecution can come up with any further evidence is doubtful. As Lt. Col. Vandeveld explained in November, Jawad’s confession to Afghan officials was “among the most important evidence for his upcoming war crimes trial.” Vandeveld added, “To me, the case is not only eviscerated, it is now impossible to prosecute with any credibility.”

Two days later, on December 12, there was a further shock in the case of Omar Khadr. Although the US government has always claimed that Khadr was responsible for throwing a grenade that killed US Sgt. Christopher Speer during the firefight that led to Khadr’s capture in Afghanistan in July 2002, it was revealed in November 2007 — just 36 hours before Khadr’s trial was supposed to begin — that a previously undisclosed “US government employee,” who was an eye-witness to the gunfight, had “potentially exculpatory evidence” proving that another man was alive at the time, and that this other man may have thrown the grenade.

At another pre-trial hearing in March last year, Khadr’s military defense lawyer, Lt. Cmdr. William Kuebler, revealed that the report of the circumstances that led to Khadr’s capture, written by an officer identified only as “Lt. Col. W.,” had been altered after the event to implicate Khadr, and on December 12 another witness, identified only as “Soldier No. 2,” produced further evidence indicating that Khadr could not have thrown the grenade, explaining, as Michelle Shephard described it, that the teenager “was buried under rubble from a collapsed roof before he was captured.”

In a motion submitted by Khadr’s lawyers, the soldier explained that he “thought he was standing on a ‘trap door’ because the ground did not seem solid.” He then “bent down to move the brush away to see what was beneath him and discovered that he was standing on a person; and that Mr. Khadr appeared to be ‘acting dead.’” Speaking to reporters, Lt. Cmdr. Kuebler explained that photographs taken at the scene, which were not shown to observers of the trial proceedings, “show a pile of rubble from the collapsed roof, and then show the debris moved aside to reveal Khadr lying facedown in the dirt,” which “make it abundantly clear Omar Khadr could not have thrown the hand grenade that killed 1st Sgt. Speer.”

A new chief judge

As prosecutors vowed to press ahead with Khadr’s trial on January 26, brushing off the defense team’s perennial cry that juveniles should not be prosecuted for war crimes, and apparently secure that they have other evidence of Khadr making and planting roadside bombs in Afghanistan which will prove that he “knowingly” carried out crimes, the next example of the Commissions’ blinkered view of reality came on December 15, when the Pentagon announced that Army Col. James Pohl, who had presided over the courts martial of several soldiers in the Abu Ghraib scandal, had been appointed as the new chief judge.

Pohl replaced Marine Col. Ralph Kohlmann (whose retirement plans had enabled KSM to mock him for his lack of commitment in September), and had already established himself as an independent-minded judge at Guantánamo. As Carol Rosenberg explained, in March, he “sternly informed” prosecutors in the case of Ahmed al-Darbi, a Saudi seized in Azerbaijan and accused of “plotting a never-realized attack on an unnamed ship in the Strait of Hormuz,” that defense lawyers “should have easy access to their clients.” Lawyers for the 33-year old father of two maintain that al-Darbi was tortured in US custody and that the government’s allegations are reliant on 119 self-incriminating statements.

Col. Pohl also refused to endorse a request from prison commanders to approve violent “Forced Cell Extractions” when prisoners refused to come to the courtroom, and on his first day in his new job, at a pre-trial hearing for al-Darbi, allowed the Saudi to make an appeal to Barack Obama. “Waving a copy of an American Civil Liberties Union poster with a pensive Obama and his campaign’s closure pledge on it,” as Rosenberg explained, al-Darbi said, “I hope this location will be closed as he promised. He will earn back the legitimacy the United States has lost as a world leader.”

This was the last hearing before the eve of Barack Obama’s inauguration, when final pre-trial hearings are supposed to begin in Omar Khadr’s case, and a mental competency hearing is scheduled for alleged 9/11 co-conspirator Ramzi bin al-Shibh, but although Col. Pohl acknowledged that he was “aware that on Jan. 20 there will be a new commander-in-chief, which may or may not impact on these proceedings,” he advised everyone connected with the Commissions to stay focused “unless and until a competent authority tells us not to.”

While this was a fair warning, Col. Pohl’s awareness of political realities was not reflected elsewhere in the Pentagon, nor, I suspect, in the Office of the Vice President, where, as I explained in my article in October that also looked at the sacking of Brig. Gen. Hartmann and the resignation of Lt. Col. Vandeveld, the architects of the Commissions — Dick Cheney and his chief of staff David Addington — seem determined to continue playing out their deranged fantasies until the moment they leave office.

A new prisoner is charged: the story of Tarek El-Sawah

On December 16, just as three Bosnian Algerians flew home from Guantánamo, after Judge Richard Leon, a Bush appointee, threw their cases out of his habeas court for lack of evidence, the Pentagon announced that another Bosnian prisoner, Tarek El-Sawah (aka Tariq al-Sawah), a 51-year old originally from Egypt, was the 27th prisoner to be put forward for trial by Military Commission. The Pentagon also reinstated the charges (PDF) against the Sudanese prisoner Noor Uthman Muhammed, allegedly the deputy emir of the Khaldan training camp, which had been dropped in October.

In El-Sawah’s charge sheet (PDF), in which he was charged with conspiracy and providing material support for terrorism, it was alleged that, between October 2000 and November 2001, he had trained at al-Farouq (the main training camp for Arabs in the years before the 9/11 attacks), had taught “the fundamentals of how to use explosives to members of al-Qaeda, the Taliban and others,” and had “developed and successfully tested a remote controlled limpet mine for use against US warships” at the Tarnak farms training camp, which he had undertaken “at the direction of a member of al-Qaeda’s Shura Council.” It was also alleged that he had written a 400-page manual on bomb-making, and had fought against US and coalition forces in the Tora Bora mountains, until he was wounded and captured.

How much truth there is to these charges is difficult to ascertain. El-Sawah was certainly a militant, but in 2004, at his only appearance before a tribunal at Guantánamo, there was no mention of the bomb-making manual or the limpet mine, and he insisted that both his military commitment — and the training he briefly gave to others in August 2001 — was directed exclusively at the Northern Alliance.

El-Sawah explained that he had traveled to Bosnia as an aid worker in 1992, had married a Bosnian woman and had only gone to Afghanistan to see if it was suitable place to take his family. Once there, however, he clearly succumbed to the most virulent Taliban propaganda against Ahmed Shah Massoud, the leader of the Northern Alliance, who was assassinated by al-Qaeda agents on September 9, 2001. He told his tribunal, “One time in a jihad, Massoud killed about 10,000 Muslims in an hour.” Reiterating that it was his intention solely to support those who were being oppressed by the Northern Alliance, he said, “There are no rules in the United States to prevent it if you want to fight for religion. There are no rules to direct me not to defend people.” He also pointed out that he went to Afghanistan to fight the Northern Alliance before 9/11, when it was no business of the Americans, and asked, “If Massoud and Dostum are American allies, they were not an alliance before September 11th, were they?”

El-Sawah also denied an allegation that he had admitted being a member of al-Qaeda, denied an allegation that he met Osama bin Laden, saying that he saw him once at a meeting of about 250 people, but had no opportunity to actually meet him, and also denied an allegation that he had engaged in hostilities against the United States. In a comment that cut to the heart of what was essentially a proxy war, fought by Afghans with US air support, he said, “There was no fighting against Americans. If there were any American soldiers saying they were fighting in Afghanistan, bring them here to me and show the evidence.”

He also explained that he was sold for money, telling his tribunal, “because the Americans offered $5,000 to anyone who captured us, they [the Northern Alliance] were fighting us and they kept us alive to get the $5,000,” and gave a poignant description of his departure from Jalalabad into the Tora Bora mountains, in which he emphasized that the war in Afghanistan and the fall of the Taliban had triggered an exodus of all kinds of people, not just al-Qaeda and Taliban fighters. “We left everything,” he said. “We were moving through mountains and caves; there were hundreds of families, children, women and people were climbing through the mountains. What were we to do? Some people were escaping from other fronts, near Jalalabad and Kabul. There were too many people there.”

Charges referred in the case of torture victim Abdul Rahim al-Nashiri

The administration’s final gesture, before the Christmas break, was for Susan Crawford, the Commissions’ “Convening Authority” — and a close friend of both Dick Cheney and David Addington — to confirm the charges that were filed last July against Abdul Rahim al-Nashiri. A Saudi, and one of 14 “high-value detainees” transferred to Guantánamo from secret CIA prisons in September 2006, al-Nashiri, who was seized in the United Arab Emirates in November 2002, was charged for his alleged role in the attacks on the USS The Sullivans and the USS Cole in 2000, and the French tanker Limburg in 2002.

Al-Nashiri faces the death penalty if convicted, although his trial, should it proceed, will undoubtedly be complicated by the fact that he is one of three “high-value detainees” whom CIA director Michael Hayden admitted last February had been subjected to waterboarding in secret CIA custody. In his tribunal at Guantánamo in 2007, al-Nashiri made a point of mentioning that he had made up false confessions after being tortured. “From the time I was arrested five years ago,” he said, “they have been torturing me. It happened during interviews. One time they tortured me one way, and another time they tortured me in a different way. I just said those things to make the people happy. They were very happy when I told them those things.”

Charges dropped against Abdul Ghani, a minor Afghan insurgent

On the same day that the charges against al-Nashiri were confirmed, there was better news for Abdul Ghani, an Afghan prisoner put forward for trial at the end of July. Without providing any explanation, Susan Crawford dismissed the charges “without prejudice,” which meant, as the Pentagon explained, “that the government has the option of charging Ghani at a later date,” but it would surely be better for the 36-year old to sent back to Afghanistan instead, where the Afghan authorities can work out if he actually constitutes a threat.

At best a minor Afghan insurgent, Ghani was charged with firing rockets at US forces, planting “land mines and other explosive devices on more than one occasion for use against US and coalition forces,” attacking Afghan soldiers, and “accept[ing] monetary payments, including payment from al-Qaeda and others known and unknown, to commit attacks on US forces and bases.” As I wrote at the time, however, “Apart from the inclusion of the magic words ‘al-Qaeda,’ there was nothing in Abdul Ghani’s charge sheet to indicate that he should find himself in the same trial system as those accused of involvement in the 9/11 attacks, the African embassy bombings of 1998 or the bombing of the USS Cole in 2000, or even, in fact, that he should have been sent to Guantánamo at all.”

Time for change

With less than two weeks until Dick Cheney and David Addington are obliged to leave the White House, when a new broom will also no doubt sweep the corridors of the Pentagon, it remains possible that the architects of the Commissions will indulge in a final round of last-minute tinkering, hoping that their failed experiment will live on, but for the rest of us, Barack Obama’s inauguration cannot come soon enough, nor, indeed, can the fulfillment of a promise that he made in August 2007:

As President, I will close Guantánamo, reject the Military Commissions Act, and adhere to the Geneva Conventions. Our Constitution and our Uniform Code of Military Justice provide a framework for dealing with the terrorists … The separation of powers works. Our Constitution works. We will again set an example to the world that the law is not subject to the whims of stubborn rulers, and that justice is not arbitrary.

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.

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

POSTSCRIPT: On January 14, the Miami Herald reported that Noor Uthman Muhammed had been arraigned, and that the Office of Military Commissions had filed new charges against Ghassan al-Sharbi, Jabran al-Qahtani and Sufyian Barhoumi, whose charges, like those against Muhammed, had been dropped in November. What happened at the arriagnment was not noted, but the Herald‘s Carol Rosenberg noted that, bizarrely, the Defense Department “airlifted TV journalists from China Central TV, The Times of London and Korea’s Dong-a Ilbo Daily” into the prison for the arraignment.

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), Four more charged, including Binyam Mohamed (June 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), High Court rules against UK and US in case of Binyam Mohamed (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), Meltdown at the Guantánamo Trials (five trials dropped, 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), Guilt by Torture: Binyam Mohamed’s Transatlantic Quest for Justice (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), 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), Obama’s Confusion Over Guantánamo Terror Trials (June 2009).