Conservative Judges Demolish the False Legitimacy of Guantánamo’s Terror Trials


When is a war crime not a war crime? When it is invented by the executive branch and Congress, and implemented for six years until a profoundly Conservative appeals court strikes it down.

The invented war crime is “providing material support to terrorism,” and on October 16, 2012, a panel of three judges in the D.C. Circuit Court (the Court of Appeals in Washington D.C.) threw out the conviction of Salim Hamdan, a driver for Osama bin Laden, who had received a five and a half year sentence for “providing material support to terrorism” at the end of his trial by military commission in August 2008 (although he was freed just five months later, as his sentence included time already served).

In its ruling, the court stated, “When Hamdan committed the conduct in question, the international law of war proscribed a variety of war crimes, including forms of terrorism. At that time, however, the international law of war did not proscribe material support for terrorism as a war crime.”

For anyone who has followed the history of the military commissions in any depth, the result was not completely unexpected. Revived by the Bush administration in November 2001, specifically for trying prisoners seized in the “war on terror,” the commissions were struck down by the Supreme Court in June 2006, but were then revived by Congress, when “providing material support to terrorism” and “conspiracy” were included as war crimes, even though there was no precedent for doing so.

When the Obama administration revived the commissions in 2009, senior figures — Jeh Johnson, General Counsel of the Department of Defense, and David Kris, the Assistant Attorney General for the National Security Division of the Department of Justice until 2011 — argued against retaining “providing material support to terrorism” in the legislation, arguing that it could be overturned on appeal. Kris testified at a Senate Armed Services Committee hearing that “there is a significant risk that appellate courts will ultimately conclude that material support for terrorism is NOT a traditional law of war offense, thereby reversing hard-won convictions, and leading to questions about the system’s legitimacy,” and Jeh Johnson told the committee, “After careful study, the Administration has concluded that appellate courts may find that “material support for terrorism” — an offense that is also found in Title 18 — is not a traditional violation of the law of war.”

Congress, however, failed to acknowledge these warnings.

For those, like myself, who have been critical of judges in the D.C. Circuit Court for gutting habeas corpus of all meaning when it comes to the Guantánamo prisoners, the result was, nevertheless, surprising. When it comes to the prisoners’ habeas corpus petitions, judges in the D.C. Circuit Court have insisted, in defiance of well-researched evidence to the contrary, that the information relied upon by the government as evidence should be presumptively regarded as accurate. The result is that, after a spate of well-deserved victories by 38 prisoners from 2008 to 2010, not a single prisoner has won in the last two and a half years, and several successful petitions have been overturned.

The judges who have been particularly prominent when it comes to undermining habeas corpus are Senior Judges A. Raymond Randolph and Laurence H. Silberman, and Judge Janice Rogers Brown, but Judge Brett M. Kavanaugh, who wrote the opinion in Hamdan v. United States of America, as part of a panel that also included Chief Judge David B. Sentelle and Senior Judge Douglas H. Ginsburg, has also lent his support.

In March 2011, for example, Judge Kavanaugh wrote a notorious opinion reversing the successful habeas corpus petition of Uthman Abdul Rahim Mohammed Uthman, granted in February 2010, even though the only evidence against Uthman, as the District Judge had recognized, was derived from prisoners who had been held in “black sites” and subjected to torture.

Although the D.C. Circuit Court’s habeas rulings continue to cast a monstrous shadow of injustice over the detention of prisoners at Guantánamo, the court’s ruling on the military commissions strikes a powerful blow to the legitimacy of those trials.

Salim Hamdan was charged with conspiracy, as well as providing material support to terrorism, although he was acquited of the former charge by his military jury. Of the seven men convicted in trials by military commission — or through plea deals — only one, the Australian David Hicks, who delivered a guilty plea in March 2007, was charged solely with providing material support to terrorism, meaning that his conviction should also be quashed.

However, it is possible that the charge of conspiracy will also wither under scrutiny. The test of this is forthcoming in an appeal filed on behalf of Ali Hamza al-Bahlul, who was convicted of conspiracy and material support for creating a propaganda video for al-Qaeda and given a life sentence in November 2008, after a one-sided trial in which he refused to mount a defense.

Moreover, al-Bahlul is not alone. Of the other four men who have been found guilty, or who have accepted plea deals, Ibrahim al-Qosi, a Sudanese man freed as a result of his plea deal in July this year, delivered a guilty plea on one count of conspiracy, and one count of providing material support to terrorism in July 2010, and another Sudanese man, Noor Uthman Muhammed, also pled guilty to providing material support to terrorism and conspiracy in February 2011 — and is scheduled to be freed in December 2013.

The cases of Majid Khan and Omar Khadr (transferred to Canadian custody in September) are more complex, as Khan accepted a plea deal on the basis that he was involved in plotting acts of terrorism, and worked with Khalid Sheikh Mohammed, the alleged mastermind of the 9/11 attacks, and Khadr, notoriously, was obliged to plead guilty to killing a US soldier, in wartime, in a country occupied by US forces, while he was just 15 years old — an act that the Obama administration has the nerve to regard as a war crime.

As President Obama begins his second term as President, the Hamdan ruling has left him with a discredited trial system at Guantánamo, whose credibility he cannot rescue. As the law professor Steve Vladeck explained in an analysis of the ruling for the Lawfare blog:

If [the] decision is a loss for anyone, it’s a loss for the commission system itself, in which, without any dissent, the trial judge and Court of Military Commission Review held that it was simply beyond question that MST [providing material support to terrorism] was a recognized violation of the international laws of war. That view received exactly zero votes from a very conservative panel of a court that has not exactly been sympathetic to claims by Guantánamo detainees. It’s hard to imagine a stronger rebuke of the quality (or lack thereof) of the legal reasoning employed by the military commission or by the CMCR — and that repudiation may be where [the] decision has the greatest long-term ramifications.

If President Obama is paying attention, it may be wise to make plans to do what he promised to do in November 2009, but then backed down from when criticized, and that is to prosecute those charged with genuine terrorist offences — Khalid Sheikh Mohammed and his four co-accused, and a handful of other men — in federal court, and to abandon the discredited military commissions once and for all. That will not remove the stench of torture from the cases of the “high-value detainees,” or overcome the failure to hold accountable those who authorized the torture, but it would close the door on at least one terrible legacy of the Bush years.

It would also be wise to stop pretending that peripheral figures — like Salim Hamdan, David Hicks, Noor Uthman Muhammed, Omar Khadr and others who, at one time or another, have been put forward for military commission trials — are guilty of war crimes, and to send them home, along with the 86 prisoners still held at Guantanamo (out of 166 in total) who have been cleared for release for many years, but are still held because of the political games and Presidential cowardice that typified Barack Obama’s first term in office.

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.

10 Responses

  1. Andy Worthington says...

    On Facebook, Neill Le Roux wrote:

    Thank you Andy…

  2. Andy Worthington says...

    You’re welcome, Neill. The ruling was nearly a month ago, but if I’d reported on it sooner, it would have got lost in the endless pre-election babble, whereas now, I hope, it will provide useful information for those pushing for the closure of Guantanamo, and for justice for those recommended for trials by President Obama’s Guantanamo Review Task Force.

  3. Thomas says...

    I read “Conservative Judges Demolish the False Legitimacy of Guantánamo’s Terror Trials” over at Lew Rockwell’s site. This decision may reflect the the declining spell cast over us and our legal system by the 911 events. The deterioration of legal and judicial adherence to our great edifice of safeguards and checks on government in too many ways……. parallels the events after the Reistag fire. The Enabling act and the Berlin laws are but distant echos of the post 911 mindset. Was the torture program designed to elicit truth or more fabrications like the Niger forgeries and the mobile weapons labs UN show by frontman Powell….. Now that “O” has been re-elected we will soon get a peek at his true position on certain of the legal and diplomatic components of the Bush/Cheney endless war on rule of law and the founding documents. As bad as it is, or will become, I firmly believe that things would be considerably worse were it not for the voices of Andy Worthington and Glen Greenwald.

  4. Andy Worthington says...

    Very good to hear from you, Thomas, and thanks for the supportive words.

  5. arcticredriver says...

    Thanks again Andy.

    I don’t know what title 18 is. But I think, from trying to read the Geneva Conventions myself, that the USA is obliged to use the same courts, the same procedures, to try foreign war crime suspects as they do to try their own nationals. I think they are obliged to give convicted foreigners they convict of war crimes sentences consistent with those they would give to their own nationals.

    I know they, very occasionally, used “military commissions” to try individuals captured in war, so occasionally they had to go back to Andrew Jackson’s genocide of the Seminoles for a precedent, but, if I understand the obligations under the Geneva Conventions, they should have permanently retired the commissions when they signed the Geneva Conventions.

    The justification for military commissions was that they would allow for speedier justice. That is laughable. Some of these suspects could die of old age before their military commissions come to a final result.

    Lieutenant Ilario Pantano desecrated the bodies of two Iraqi captives he shot in cold blood. He said he methodically emptied two whole magazines into these men in order to “send a message” to Iraqis. He posed their corpses next to their vehicle and scrawled a sign over them, saying “no better friend, no worse enemy”

    Shouldn’t desecrating the bodies of innocent men to terrorize their neighbours be considered a war crime?

    I don’t understand why practically everything Pantano did in his treatment of these men shouldn’t have been considered a war crime. Charges were dropped. The whistleblower’s career was ruined.

    Pantano’s mother is a professional publicist. She pushed very heavily to get a highly inaccurate narrative out there. But some early reporting, no longer online, quoted from the statement he made to NCIS investigators two months after the atrocity. Pantano was bragging. He told investigators he had planned to “send a message” when he woke up that morning. The quotes from his statement repeated that phrase, multiple times.

    Pantano’s mother’s widely repeated narrative had the Iraqis advancing on him menacingly. Pantano’s mother’s widely repeated narrative had Pantano directing the Iraqis to stop, multiple times, before he opened fire.

    In fact, according to Pantano’s own voluntary statement, the Iraqi were captives, who he had unbound, so he could order them to search their own vehicle.

    This alone is weird, and screams for explanation. First, how could someone who doesn’t speak Arabic order Arabic speaking men to search a vehicle? Pantano’s answer? He explained with hand signals.

    Second, if these Iraqis were really enemies, and they had a hidden a weapon, or bomb, in the car, Pantano was giving them access to it.

    Third, Pantano’s men had already searched the vehicle.

    Fourth, regulations prohibit putting disarmed captives at risk. If Pantano really thought the car was boobytrapped making his captives search it was a war crime.

    Fifth, while the US forces were desperately short of Arabic speakers Pantano’s platoon contained one — a West African muslim who was taking enlisting in the Marines as his path to US citizenship. He was questioning the captives’ female relatives, who they had just finished visiting, and could easily have been called over to translate Pantano’s instructions.

    According to Pantano’s statement, when he shot the Iraqi men they were on their knees, facing away from him, facing into the open doors of their car.

    Yes, he had yelled at them to stop, twice. But what he was yelling at them to stop doing was to stop talking with one another.

    My interpretation of Pantano’s statement is that these men had no idea why Pantano had told them to do, with his hand signals. They knew he had unbound them, placed them on their knees, and was standing behind them. I am sure they were terrified, and were sure he planned to give them a summary battlefield execution.

    I strongly suspect that their conversation with one another was their agreement that they were about to be killed, and their farewells.

    According to Pantano’s statement, he decided to shoot when they turned to face one another, which he described as the prelude to them getting up to attack him.

    Pantano has an unusual background, he attended an expensive private school, but apparently he was part of its diversity program, and was not a fee-paying student. He went right from that school into the Marines, as an enlisted man. He was trained to be a sniper, and was promoted to NCO, and was a veteran of the 1991 Gulf War.

    After his discharge he worked on Wall Street. He married a fashion model. He was a movie producer. His apartment was near a NY fire station, and he got to know some of the ex-marines who were firefighters there, who ended up dying in the WTC. His wife describes how she was surprised the afternoon of 9-11 that he came home with a brush cut and told her he had re-enlisted in the Marines.

    He was just under the cut-off age for enlisted marines to apply for officer school. His men described him as “motarded” — motivated to the point of retardation.

    During his article 32 hearing teams of ex-marines guarded his family, because the defense claimed they had received death threats from al Qaeda.

    When he got back to barracks a more level headed officer convinced him to go back and remove the sign, and to call the Iraqi morgue for body pickup.

    A year after the incident an Iraqi doctor signed an Iraqi post mortem of two Iraqi men — that reported the two men had been shot in the front, cosistent with his mother’s narrative that they were charging him. But that post mortem was not consistent with Pantano’s own voluntary statement to NCIS, where he bragged about emptying two magazines into them (48 bullets). The men the Iraqi doctor had been asked to examine had each only been shot a couple of times.

    Pantano retired from the Marines, with an honorable discharge. What was his next full time job? He went into law enforcement, he became a Sheriff’s Deputy.

    Is Pantano the kind of guy who should not be allowed to take a job in law enforcment?

    Pantano has since written a book, and run for Congress.

    If the USA had complied with its Geneva Convention obligations the standards of justice applied in Pantano’s case would be consistent with those applied to Omar Khadr and the others.

  6. Andy Worthington says...

    That’s excellent analysis, arcticredriver, and harrowing too, and it exposes fully the hypocrisy at work in post-9/11 America.
    Title 18, btw, is “the criminal and penal code of the federal government of the United States,” which “deals with federal crimes and criminal procedure.”
    That’s from Wikipedia!

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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 and We Stand With Shaker. Also, photo-journalist (The State of London), and singer and songwriter (The Four Fathers).
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