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.

Last week I reported on this grotesque dance in the case of Khalid Sheikh Mohammed and his co-accused, and at Guantánamo last week it was Abd al-Rahim al-Nashiri’s turn.

Shamefully, the government’s anxiety regarding the mention of torture is such that, since the six “high-value detainees” mentioned above, and eight others, arrived at Guantánamo from secret prisons run by the CIA six years ago, every word they and their lawyers have uttered to each other has been kept secret. At Guantánamo, all communication between lawyers and their clients is presumptively classified, but in most cases some of that information, at least, is unclassified after it is reviewed by Pentagon censors. In the cases of the “high-value detainees,” however, not a single word has been cleared for release in the last six years.

Last week, as Hurricane Sandy approached Guantánamo, the few reporters who had stayed on after the 9/11 circus moved on heard Abd al-Rahim al-Nashiri speak, and also heard his lawyers press for their client’s torture to be discussed.

A millionaire businessman prior to his capture in the United Arab Emirates ten years ago, al-Nashiri, notoriously, was one of three “war on terror” prisoners subjected to the ancient torture technique known as waterboarding, which is a form of controlled drowning. Held in Thailand and in Poland, where he has been officially recognized as a “victim” by a prosecutor investigating the Polish prison, al-Nashiri was also threatened with a gun and a power drill, while hooded and restrained.

All of this is publicly known, and some of it first emerged in the CIA Inspector General’s report on the “high-value detainee” interrogation program in 2004 (PDF), but at Guantánamo it remains off-limits.

In its place, discussions last week focused on whether or not al-Nashiri was required to attend all hearings in his case. In July, he had stayed in his cell as hearings took place, and last Tuesday he again stayed away. His civilian lawyer, Richard Kammen, said before the hearing that his client “had little incentive to show up at the war court,” as Carol Rosenberg described it in the Miami Herald, on the basis that “US policy permits the Pentagon to keep a captive forever … even if he is acquitted of war crimes.” As Kammen put it, “If he’s going to die in Guantánamo either way, it’s just a question of when.”

When the court convened, dealing with prosecutors’ claims that the credibility of military commission trials could be called into doubt if defendants are not present, and might be an issue in any appeal following a conviction, al-Nashiri’s  military lawyer, Navy Lt. Cmdr. Stephen Reyes, addressed the issue succinctly. “They need an actor for the theater essentially,” he told the court.

The showdown was precipitated when the chief prosecutor, Army Brig. Gen. Mark Martins, insisted that al-Nashiri “be brought to court to at the very least tell the judge for the record that he understood his right to voluntarily skip this week’s proceedings,” as the Miami Herald described it.

On Wednesday, al-Nashiri didn’t resist being brought to the courtroom, but if he had refused to leave his cell, he would have been “forcibly extracted,” Lt. Cmdr. Reyes said, using the opportunity to move from discussing violence by the guards to the Bush administration’s torture program.

“The torture is a specter that essentially encompasses the entire procedure here,” he said, and Carol Rosenberg noted that he “said ‘torture’ 14 times in Tuesday’s short morning session.”

Al-Nashiri, however, was more concerned with his current treatment, as he made clear in a short speech to the judge, Army Col. James Pohl, in which he threatened to boycott his trial because of his mistreatment, although he did so in a calm and courteous manner.

“I do intend to attend all future sessions,” he said. “But if the guards do not treat me better, I have the right not to come and let the world know that the judge sentenced me to death because I didn’t show up to court due to chains.”

As the Miami Herald described it, he also “complained that his US military guards gratuitously chain him up and transport him to court in a car that’s so uncomfortable he throws up en route.” He also “said he has a back problem and belly chains exacerbate it.”

After his short speech, his defense team called for access to documents which they believe might establish that their client was not, as alleged, the mastermind of the USS Cole bombing. They noted that, at the time of a US drone attack in Yemen in November 2002, another man, Qaed Salim Sinan al-Harithi, who was killed in the attacks, was described by US officials as the mastermind of the attack, and, understandably, they want the government’s information about al-Harithi to be made available to them.

After that, the weather took over, as Hurricane Sandy neared the base. Carol Rosenberg noted that the three remaining Uighur prisoners at Guantánamo were being moved from the wooden huts of Camp Iguana, the compound where they live, “to a more hurricane-proof cement and steel prison building.” Muslims from China’s Xinjiang province, the Uighurs have been held separately from the general population since they had their habeas corpus petitions granted in October 2008. They are the last of the Uighurs at the prison, as 19 of their compatriots have been resettled in other countries.

On Thursday, Hurricane Sandy tore through Guantánamo, cutting off power supplies, and leading to the cancellation of the rest of the week’s planned hearings. The court is not expected to convene again until December, after the Presidential election, when torture will once more be the elephant in the room. The mainstream media will presumably turn out once more, but it remains to be seen if, as the 11th anniversary of the opening of the prison approaches, on January 11, 2013, newspaper and broadcast editors will also remember that, almost four years ago, President Obama promised to close the prison within a year, and will recall that 86 cleared prisoners are still held, in a mockery of justice that urgently and permanently needs addressing.

Note: The courtroom sketch at the top of this article is by Janet Hamlin, and is reproduced courtesy of Janet Hamlin Illustration.

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) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed — and I can also be found on Facebook, Twitter, Digg, Flickr (my photos) and YouTube. Also see my definitive Guantánamo prisoner list, updated in April 2012, “The Complete Guantánamo Files,” a 70-part, million-word series drawing on files released by WikiLeaks in April 2011, and details about the documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and available on DVD here — or here for the US). Also see my definitive Guantánamo habeas list and the chronological list of all my articles, and please also consider joining the new “Close Guantánamo campaign,” and, if you appreciate my work, feel free to make a donation.

As published exclusively on the website of the Future of Freedom Foundation.