Torture And Futility: Is This The End Of The Military Commissions At Guantánamo?

Last Monday, when Khalid Sheikh Mohammed and his four co-defendants in the long-delayed 9/11 trial at Guantánamo were scheduled to make an appearance before their Military Commission judge, Army Col. Stephen Henley, to discuss some procedural arrangements and the ongoing dispute about the mental health of one of the men, Ramzi bin al-Shibh, the naval base’s airport was busy, as reporters, observers and relatives of the 9/11 victims were flown in to witness what some parts of the military clearly still regard as a viable trial system.

In the end, the whole event was a disappointment, as Col. Henley agreed to a request from the government to freeze the trial proceedings for another 60 days (on top of the two 120-day freezes to date), to allow time for the administration to work out whether it can persuade the House of Representatives to approve proposed changes to the much-criticized trial system, or whether to proceed with federal court trials instead (and I explained why the latter is the only viable option in an article entitled, “9/11 Trial At Guantánamo Delayed Again: Can We Have Federal Court Trials Now, Please?”).

As a result, none of the defendants showed up in court on Monday, and the authorities were obliged to temper their disappointment by releasing a statement from the men the following day, which was clearly intended to provide another piece of evidence for the prosecution in the absence of any actual proceedings.

A statement by Khalid Sheikh Mohammed and his co-defendants

In a letter submitted to the judge acknowledging that they had no objections to the government’s proposed 60-day delay, Mohammed and two of his co-defendants, Walid Bin Attash, and Ali Abdul Aziz Ali, sent greetings to Osama bin Laden, Ayman al-Zawahiri and Mullah Omar, and took the opportunity to refer triumphantly to the 9/11 attacks. “We send our greeting to them on the occasion of the anniversary of eight years past on the most noble victory known to history over the forces of oppression and tyranny in the Washington and Manhattan attack,” they wrote.

As the Associated Press described it, they also quoted from the Koran to explain their continuing desire to represent themselves, but to offer no defense to the charges against them. ”I put my trust in Allah,” they wrote, “So devise your plot … Then pass your sentence on me and give me no respite.” The men also — as is Mohammed’s habit — took the opportunity to refer to the torture to which they were subjected in secret CIA custody, before their transfer to Guantánamo in September 2006, and also criticized President Obama. “We spent three years moving around the black sites in the ‘dark ages’ of Bush, then we were transferred to the island of oppression, torture and terror, Guantánamo,” they wrote, adding, “Then, the lying Barack, the new American president was elected, and we entered the black ages of Barack.”

Afterwards, few reporters and observers stuck around for the rest of the week’s events, even though pre-trial hearings were also scheduled for two other Military Commission cases: of Ahmed al-Darbi, a Saudi, seized on arrival in Azerbaijan in June 2002 and “rendered” to US custody in Afghanistan two months later, who is accused of plotting to attack a ship in the Strait Of Hormuz, meeting Osama bin Laden and attending a training camp in Afghanistan, and Mohammed Kamin, an Afghan accused of training at “an al-Qaeda camp” and taking part in the insurgency against US forces. Two who did were Carol Rosenberg of the Miami Herald and Jane Sutton of Reuters, and I’m grateful to them for staying and capturing some disturbing allegations about the Commissions that might otherwise have gone unnoticed.

Ahmed al-Darbi’s torture allegations

In al-Darbi’s pre-trial hearing last Wednesday, the judge, Army Col. James Pohl, also decided to abide by the President’s request for another stay in the Commission proceedings, but not until al-Darbi’s lawyer, Ramzi Kassem, had raised some uncomfortable questions about his client’s treatment in US custody. According to the Commissions’ rules, evidence derived through the use of torture is banned, but individual judges may use their discretion to accept evidence obtained through coercion. The demarcation line is clearly a gray area, as was demonstrated on Wednesday, when Col. Pohl refused to abandon al-Darbi’s proposed trial, setting a date of January 11, 2010 (the eighth anniversary of the opening of Guantánamo) for a further hearing to decide which of the 119 statements made by al-Darbi to interrogators would be accepted as evidence.

This was in spite of protestations by Kassim that all the statements were tainted by the use of torture, because, as Carol Rosenberg described it, they were obtained “through beatings, threats of rape, sleep and sensory deprivation, and sexual humiliation,” at the US prison at Bagram airbase in Afghanistan (where al-Darbi was held for eight months) and also at Guantánamo.

Given the gravity of these allegations (explained in greater detail in a statement by al-Darbi that I’ve reproduced here, and which is well worth reading in its entirety), it was unsurprising that, following Col. Pohl’s ruling, Ramzi Kassem explained to reporters, “Either the Obama administration is duplicitously saying one thing to the public and the media and doing another here or, you know, Guantánamo and the military commissions are like a headless chicken that just keeps on moving after it’s been decapitated.”

Kassem also read out a statement prepared by al-Darbi, explaining that his client had “planned to read his statement in court but felt there wasn’t an opportunity during the brief hearing.” In the statement, al-Darbi, who, as the Associated Press described it, had held up a photo of Barack Obama “as a sign of hope” at a pre-trial hearing last December, and had stated that he hoped Obama would “earn back the legitimacy the United States has lost in the eyes of the world,” revised his opinion.

Although the statement was addressed to “his excellency, the American President Barack Obama, whose photo I held up in this place as though I had voted for him,” al-Darbi criticized Obama for “issuing certain orders and decisions” regarding the Military Commissions, telling the President that “he has gone astray.” He also criticized the government for holding a hearing during the post-Ramadan holiday of Eid, and also referred to Obama’s speech in Cairo in June, which was intended to build bridges with the countries of the Middle East. “I can tell you that the ugliness of this place and its continuing existence … have all covered up the beautiful smile that the American president directed at you,” al-Darbi wrote, directing his comments at Muslims who had watched the President’s speech in Egypt.

The futility of prosecuting Mohammed Kamin

If the case of Ahmed al-Darbi raises uncomfortable questions about the distinctions between coercion and torture, the case of Mohammed Kamin is simply inexplicable. As I explained in an article last March, when he was first charged, Kamin seems to be “an unworthy candidate for any kind of war crimes trial at all.” I continued:

In his charge sheet (PDF), he is accused of “providing material support for terrorism,” specifically by receiving training at “an al-Qaeda training camp,” conducting surveillance on US and coalition military bases and activities, planting two mines under a bridge, and launching missiles at the city of Khost while it was occupied by US and coalition forces. He is not charged with harming, let along killing US forces, and were it not for his supposed al-Qaeda connection — he apparently stated in interrogation that he was “recruited by an al-Qaeda cell leader” — it would, I think, be impossible to make the case that he was involved in “terrorism” at all. As it is, I’m prepared to state that his case seems to me to demonstrate how hopelessly blurred the distinctions between military resistance (aka insurgency) and terrorism have become, so that anyone caught fighting US occupation is not engaged in a war (with its own well-established laws) but is automatically part of a global terrorist movement.

At the time, the Bush administration was unconcerned that providing material support for terrorism was not a recognized war crime, but whereas Ahmed al-Darbi is charged with both conspiracy and material support for terrorism, Mohammed Kamin faces nothing but a material support charge, and the Obama administration, to its credit, has already accepted, in its plans to review the Military Commissions Act in Congress, that the charge of material support for terrorism should be dropped. Assistant Attorney General David Kris conceded, in Congressional testimony in July, that there is a “significant risk” that, on appeal, judges would not regard it as a legitimate war crime, and the Justice Department’s position is also held by the Pentagon, where General Counsel Jeh Johnson also accepted in July that “material support is not a viable offense to be charged before a military commission because it is not a law of war offense.”

As a result, although the Commissions definitely seem to be proceeding like a “headless chicken” in Kamin’s case, his lawyers asked the judge to schedule a meeting with Jeh Johnson, and are hopeful that they will be able to persuade him to accept that it would be absurd to proceed with his proposed trial. In a detailed submission (PDF), they noted that, as recently as September 10, Johnson told a national security panel of American Bar Association lawyers that, although material support for terrorism was included in the Senate’s bill for amending the Commission, “We don’t believe that material support is a law of war offense. That’s still our position.”

The situation is further complicated because Susan Crawford, the Commissions’ Convening Authority (and a close friend of both Dick Cheney and David Addington), whose conflicted role overseeing the Commissions I have written about at length (here, here and most recently here), responded in July to a request from Kamin’s lawyers to withdraw or dismiss the charges by noting that Johnson had only stated that “appellate courts may find that material support for terrorism is not a traditional violation of the law of war” (emphasis added), and that, at present, it remained a viable charge under the MCA.

Despite Crawford’s insistence that, in the trial of Salim Hamdan, the judge ruled that “the conduct embraced within the specification [of material support] included conduct which the United States has considered a violation of the law of war since at least the Civil War,” I’m reasonably optimistic that neither Crawford nor the Congress will prevail in their arguments. Even so, it remains disgraceful that Mohammed Kamin is still waiting for justice, nearly six and a half years since his capture, and, more worryingly, that Ahmed al-Darbi, who, unlike Kamin, is clearly regarded as a significant prisoner, is still no closer than he was six and a half years ago to establishing whether he will ever be allowed to address, in a fair and open hearing, his claims that he was tortured in Bagram and Guantánamo.

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 (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, published in March 2009, and if you appreciate my work, feel free to make a donation.

Cross-posted on The Public Record.

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), 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), 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), 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), 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), The Dying Days of the Guantánamo Trials (January 2009), 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), Predictable Chaos As Guantánamo Trials Resume (July 2009).