Military Commissions

Linking to and discussing my recent, in-depth, one-hour interview with Kevin Gosztola for his “Unauthorised Disclosure” podcast, in which we discussed Guantánamo, with a specific focus on the military commissions, and the recent ruling by the 9/11 trial judge refuting defense secretary Lloyd Austin’s claim that he had the right to revoke plea deals agreed in July with three of the 9/11 co-accused, and on the plight of the 16 men still held who have long been approved for release, and for whom President Biden urgently needs to find new homes before his presidency comes to an end. Kevin also promoted ’Songs of Loss and Resistance”, the new album of protest music by my band The Four Fathers, harking back to the ‘Protest Song of the Week’ feature that he ran on his previous site, Shadowproof, where he publicized our very first release nine years ago.

My analysis of the hugely important ruling in the military commissions at Guantánamo by Judge Matthew McCall, the military judge in the 9/11 trial, who has ruled that defense secretary Lloyd Austin had no right to revoke the plea deals that were agreed three months ago with three of the men charged in connection with the 9/11 attacks — Khalid Shaykh Mohammad, the alleged mastermind of the attacks, and two of his alleged accomplices, Walid bin Attash, and Mustafa Al-Hawsawi. The plea deals, which took the death penalty off the table in exchange for life imprisonment, and, crucially, involved confessions from the three men that would constitute some kind of closure for the 9/11 victims’ families, took two and a half years to negotiate and arrange, after prosecutors finally recognized that the torture to which the men were subjected in CIA “black sites” was so horrific that it made the notion of successful prosecutions fundamentally unviable. Judge McCall forensically analyzed Lloyd Austin’s revocation of the plea deals, and found, unerringly, that he had no right to do, having handed responsibility to the Convening Authority, retired US Army Brigadier General Susan Escallier (previously the Chief Judge in the US Army Court of Criminal Appeals), who had full authority to approve them. It is to be hoped that the government doesn’t appeal, as it is threatening to do, because the plea deals are the only way to bring to an end a broken process, fatally infected by the use of torture, that has been mired, for the last 12 years, in seemingly endless pre-trial hearings with no trial date in sight.

With just two months to go until President Biden cedes power to Donald Trump, it’s crucial that pressure is exerted on the Biden administration to secure the release from Guantánamo of 16 men, never charged with a crime, who have long been approved for release — for between two and four years, and in three outlying cases for nearly 15 years. Urgent action is essential, because it is clear that Trump will seal Guantánamo shut, as he did in his first term in office. The scandal of these men’s ongoing imprisonment is that the decisions taken to approve them for release were made by high-level administrative processes, which have no legal weight, meaning that no mechanism exists to compel the government to actually free them if they find it inconvenient or to do so. An additional complication is that most of them are Yemenis, and US law prevents the return of prisoners to Yemen. However, over a year ago, a plan to resettle them in Oman was finalized, but was called off after the October 7 attacks in Israel. That plan urgently needs reviving, or, if that isn’t possible, another country needs to be found that will offer these men new homes. The alternative — another four years of entombment under Donald Trump — doesn’t even bear thinking about.

A crucial update on Guantánamo, with just two weeks left until the Presidential Election, in which I review Biden’s progress — or the lack of it — towards the prison’s closure over his nearly four years in office, look at what can be expected, and what should be pushed for after the election, and celebrate the importance of the efforts made by opponents of Guantánamo’s continued existence — via our ongoing monthly vigils, and our ongoing photo campaign — to pierce the fog of amnesia and inertia that engulfs the prison. With no one freed from Guantánamo for the last 18 months, I look at the plight of the 16 men still held despite being long approved for release, and mark the recent passing of Tina Kaidanow, the former ambassador appointed to facilitate resettlements for these men, whose efforts were stymied by her bosses when she negotiated resettlements in Oman that were cancelled because of the “political optics” after October 7 last year. I also examine the wreckage of the military commissions, where necessary plea deals with the 9/11 accused, whose prosecutions are impossible because of the torture to which they were subjected, were overruled by defense secretary Lloyd Austin, and I also provide a reminder about the absolutely devastating report and opinions about Guantánamo that were issued by UN Special Mandate holders last year, which were shamefully brushed aside by the Biden administration.

My recent interview with Chris Cook, on his long-running Gorilla Radio show in western Canada, in which we discussed the recently announced, but swiftly aborted plea deals at Guantánamo for three men accused of involvement in the 9/11 attacks, the latest monthly coordinated global vigils for the closure of Guantánamo, which had just taken place at ten locations across the US, and in London, Brussels and Mexico City, the far-right riots in the UK, and much more.

My analysis of the shameful news that, just two days after plea deals were announced in the cases of three of the men charged in connection with the 9/11 attacks — whereby the death penalty would be dropped in exchange for guilty pleas and the promise of life sentences instead — defense secretary Lloyd Austin has revoked those plea deals. The three men include Khalid Shaikh Mohammad, the alleged mastermind of 9/11, and the plea deals provided what appears to be the only viable conclusion to the legal impossibility of successful prosecuting them after their torture for three and a half years in various CIA “black sites.” Efforts to prosecute them have been ongoing since 2008, but are primarily stuck in a kind of “Groundhog Day,” because the men’s lawyers correctly seek to expose the torture to which they were subjected, while prosecutors seek to hide it, although over the last two years prosecutors have been working towards the plea deals, having apparently accepted that successful prosecutions are impossible. Austin’s capitulation — to Republican criticism, and to what appears to be the Democrats’ own commitment to a type of endless vengeance when it comes to the “black site” prisoners — is therefore a deplorable failure to accept the compromises needed to bring this sordid chapter in US history to an end, as well as to provide the remaining prisoners with adequate physical and mental health treatment, as required under international humanitarian law, and it is to be hoped that his “undue command influence” will be successfully challenged in court.

Examining yet another facet of the ongoing chronic injustice at Guantánamo — the recent sentencing, for war crimes, of Abd al-Hadi al-Iraqi, Guantánamo’s most profoundly disabled prisoner, who suffers from a chronic degenerative spinal disease, which, despite seven operations at the prison, has not been adequately resolved, and will in all probability eventually leave him paralyzed. A 62- or 63-year old Iraqi Kurd, whose real name is Nashwan al-Tamir, al-Iraqi has been held at Guantánamo for over 17 years, after being held in a CIA “black site” for six months. Although the US authorities initially tried to tie him to Al-Qaeda and terrorism, the main charges against him ended up relating to his time as a military commander in Afghanistan at the time of the US-led occupation. At his sentencing, al-Iraqi was profoundly apologetic to the family members of those who were killed as a result of his orders in Afghanistan; however, the military jury delivered the maximum sentence, of 30 years, although this was reduced to ten years via a plea deal he agreed to two years ago. Nevertheless, this means that he will not be released until 2032, which still seems hugely punitive, given his contrition, his medical condition, and the fact that, when his sentence ends, he will have been held for 26 years in total.

My interview with Scottie Nell Hughes on Sovren Media about the need for the prison at Guantánamo Bay to be closed, in which I was provided with the opportunity to explain the many reasons why the prison’s closure is long overdue.

My report about last month’s military commission hearings at Guantánamo, at which the prison’s only Malaysian prisoners, Mohammed Farik Bin Amin and Mohammed Nazir Bin Lep, accepted a plea deal, admitting that they were involved as accomplices in the Bali nightclub bombings in 2002, as members of the terrorist group Jemaah Islamiya, and agreeing to provide information in the forthcoming trial of the group’s alleged leader, Hambali (Riduan Isamuddin), in exchange for a reduced sentence. As I explain, the two men are largely unknown to the general public, even though they are “high-value detainees” who were held and tortured in CIA “black sites” for three years, from 2003 to 2006, and have been held at Guantánamo for over 17 years.

My detailed report about, and the video of ‘Close Guantánamo!’, an extraordinary and hugely powerful three-hour event held at the EU Parliament on September 28, 2023, featuring nine speakers, including Mansoor Adayfi (on what was only his second trip to freedom since he finally got a passport earlier this year) and two other former prisoners, two lawyers, a UN Rapporteur, myself and others, hosted by the inspiring independent Irish MEPs Clare Daly and Mick Wallace. As the event highlighted, the priorities for anyone concerned with justice, and with bringing to an end Guantánamo’s vile existence, are to resettle 16 men still held who have been approved for release (for which the countries of EU can help), providing adequate medical care for everyone still held at the prison, reminding the US government that it continues to have an obligation to ensure the welfare of former prisoners, even after their release, and, eventually, seeking accountability for the crimes that the US government has committed, and still continues to commit at Guantánamo.