Archive for September, 2007

The Military Commissions –- the Stalinesque show trials dreamt up in November 2001 by Dick Cheney and his cabal of close advisors, including David Addington –- have been dogged by controversy ever since. Killed off by the Supreme Court in June 2006, brought back to life through the ghoulish Military Commissions Act a few months later, and then killed off again three months ago, this long-running horror show –- which is beginning to rival A Nightmare on Elm Street’s Freddie Krueger for deathless longevity –- returned from the grave again on Monday, when a trio of judges in a hastily convened appeals court ruled that announcements of the Commissions’ death in June had been premature. (For the full story, see my recent article here).

So far so good for the “Dark Side,” then. But wait! Before the ink had even dried on the script for the Commissions’ latest rebirth, the Wall Street Journal reported that all was not well behind the scenes, and that the monster’s puppeteers were engaged in a bitter dispute over the future of their masters’ creation. According to “people familiar with the matter,” as Jess Bravin described it, the Commissions’ chief prosecutor, Col. Morris Davis, who took the job in 2005, has “filed a formal complaint,” alleging that Brig. Gen. Thomas Hartmann, the legal adviser to retired judge Susan Crawford, the “convening authority” overseeing the trials, has “overstepped his mandate by interfering directly in cases.” In a letter seen by the WSJ, Davis suggested that both he and Hartmann should resign “for the good of the process.” Davis added, “If he believes in military commissions as strongly as I do, then let’s do the right thing and both of us walk away before we do more harm.”

Col. Morris Davis

Officials cited by Bravin said that the dispute “has left the prosecution office in disarray,” with prosecutors “uncertain who is in command and which cases they should pursue,” out of the 80 or so that have been regularly touted by the administration as those who will face what Bravin describes, a little gingerly, as the “offshore court.” The dispute is apparently so severe that Davis has “refused to file additional charges against Guantánamo inmates until [it] is resolved,” and the Pentagon’s general counsel, William J. Haynes II –- a protégé of David Addington, who was involved in the development of the administration’s torture policies (aka “enhanced interrogation techniques”) in 2002 –- authorized an investigation, which, according to a senior defense official, found in favor of Hartmann. “Davis is obliged to heed the orders of Hartmann whether or not he likes them, so long as they’re lawful,” the official explained. “And there’s no indication that he’s issued any unlawful orders.”

The conflict is already affecting the case of the Yemeni Salim Hamdan, one of Osama bin Laden’s drivers. Hartmann has apparently suggested offering Hamdan a plea bargain –- perhaps similar to the one that saw David Hicks released in May –- overruling “the objections of trial prosecutors.” And this is where it gets really interesting, as the conflict seems to be focused on Hartmann’s opposition to what he perceives as the weakness of the cases that Davis has chosen to pursue: those which, like Hicks, Hamdan and the Canadian child soldier Omar Khadr, “rely largely on unclassified evidence, allowing trials to be open to the press to address criticism that the process is too secretive,” even though these cases “tend to involve relatively undramatic charges, such as providing services to a terrorist organization.” Hartmann, in contrast, wants higher profile cases, which “could attract more public attention and perhaps also support for the tribunal system, even though they may involve closed proceedings.”

The problems with the positions adopted by both Davis and Hartmann are apparent, and neither shows the system in a good light. On the one hand, there are the admitted weakness of Davis’ cases, and, on the other, Hartmann’s presumption that a system involving “closed proceedings” might attract public support. Less clear is how the conflict will be resolved. Hartmann –- a reservist who took office in July, and whose civilian job is chief counsel to the Connecticut-based Mxenergy Holdings Inc. –- is actually Davis’ superior officer, and is “supposed to provide impartial advice” to Susan Crawford. According to the rules set up for the Commissions, his role is to “make an independent and informed appraisal of the charges and evidence,” to help Crawford “decide whether charges proposed by the prosecutors are sufficient to go to trial.”

Brig. Gen. Thomas Hartmann

However, he is not universally admired. Having taken charge of the prosecution office while Davis was away, recovering from surgery, he apparently took advantage of the prosecutor’s absence to shake things up as he saw fit. One critic is Cully Stimson, the former deputy assistant defense secretary for detainee affairs, who is now a fellow at the Heritage Foundation. (Memorably, though Jess Bravin didn’t mention it, Stimson, who helped draft the Commissions’ rules, lost his government job earlier this year, after starting a witch-hunt against corporate law firms who do pro bono work for the detainees). Stimson, who appears more contrite these days, said that he didn’t anticipate Hartmann “meddling in the day-to-day operations of the prosecutor.” He explained that, if so advised by Hartmann, Crawford could “negotiate plea bargains even over the prosecutor’s objection,” but added that, just as the defense “should not be influenced or have the appearance of being influenced, so they can do the best for their client, the same should be true for the prosecution.”

Other critics have spoken out from within the prosecutor’s office. Although a lawyer close to the process told Bravin that Hartmann had complained that, after four years, the prosecution was “still unready to try cases,” and was frustrated with their “can’t do” approach, some prosecutors have complained that Hartmann “is ‘micromanaging’ cases he doesn’t fully understand.” The case of Salim Hamdan, as Bravin describes it, “has struck a particular nerve.” Prosecutors have explained that negotiating a plea deal with Hamdan “would be a blow to the government’s credibility.” In a particularly revealing admission, which illuminates the failures of the Commission system more than anyone involved in it would care to admit, one prosecutor said, “Think of our only other ‘success’ in this –- David Hicks. How is that a success for the United States government? How does that justify Guantánamo?”

As Col. Davis fumes, contending that the Military Commissions Act “bars outside interference in the ‘professional judgment’ of prosecution and defense lawyers,” and stating, in no uncertain terms, that “If someone above me tries to intimidate me in determining who we will charge, what we will charge, what evidence we will try to introduce, and how we will conduct a prosecution, then I will resign,” those whose reputations are really on the line –- President Bush and Vice President Cheney –- must be hoping for a swift resolution to the in-fighting. Having just revealed the scale of their ambition, lining up the “high-value” detainees for Military Commissions by allowing them access to lawyers for the first time –- which, in the case of the longest-held detainee, Abu Zubaydah, is the first time in five and a half years that he has been allowed this right –- the last thing they need is for the squabbling among their monster’s puppeteers to bring the whole sorry charade crashing down once more.

Bring on the monster, then. Those of us who still believe in the rule of law know that this inept, misguided and unjust creation will collapse again sooner or later, anyway.

For more on the legal struggles over Guantánamo, see my book 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 CounterPunch.

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), 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), 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), Obama’s Confusion Over Guantánamo Terror Trials (June 2009).

While waiting for my ship to come in –- the one that’s carrying the UK copies of The Guantánamo Files from the US printers –- I failed to notice that the book is already on sale in the US: Amazon here, University of Michigan Press here. The UK release date is officially November 8, but copies will also be on sale here within a week or so, and they can be pre-ordered from Amazon here or Pluto Press here. Signed copies will be available directly from me as soon as I have them, although the postage costs may be rather off-putting for anyone outside the UK/EU.

In other media developments, Slovenian speakers are directed to an article in the Slovenian newspaper Dnevnik by the journalist Kristina Bozic, who interviewed me in London recently. Those lacking the necessary linguistic skills may like to know that Kristina took the time to transcribe the interview, which I’ll be making available soon, once I’ve proof-read it, and –- er –- probably removed some of the more outré comments that I made about my least favourite Vice President after a few too many espressos. Manca Juvan, a photographer and fellow Slovenian, took the photo, which is dynamic, even if the bloke in it woke up in a hedge and forgot to shave. More of her work –- featuring considerably more impressive subject matter –- is available on her website, and it’s well worth a look.

And finally, for now, the documentary about Guantánamo and the secret prisons, which I first mentioned here, is progressing well, with Clive Stafford Smith and Moazzam Begg both taking time out of their incredibly busy schedules over the last few weeks to talk with passion and eloquence about Guantánamo. Work will start soon on editing it, and I hope to have a few clips to show in the not too distant future.

Note: The interview with Kristina, in English, is available here.

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One thing you learn when studying Guantánamo is that nothing can ever be taken for granted, and the events of the last week have demonstrated, yet again, that this is the case. As lawyers for the Guantánamo detainees prepare, like a legal version of Groundhog Day, for a climactic Supreme Court showdown with the administration over the rights of the detainees to challenge the basis of their detention (replaying scenes which were first enacted over three years ago, in Rasul v. Bush, but which were derailed in last fall’s Military Commissions Act), another version of this seemingly endless saga –- focusing on similar challenges, in the District Court, to another dubious piece of post-Rasul legislation, the Detainee Treatment Act of 2005 –- hit a brick wall last Thursday.

In Washington, District Court Judge Ricardo Urbina dismissed 16 lawsuits, challenging the indefinite imprisonment of at least 40 detainees in Guantánamo, which had the knock-on effect of denying lawyers access to their clients. Crowing smugly, Justice Department lawyer Andrew Warden declared after the decision, “In light of this development, counsel access (both legal mail and in-person visits) is no longer permitted.”

That this is possible, 39 months after the Supreme Court ruled decisively, in Rasul v. Bush, that the detainees had the right to challenge the basis of their detention, and that habeas corpus was, as Justice John Stephens so memorably described it, “a writ antecedent to statute … throwing its roots deep into the genius of our common law,” demonstrates, succinctly, how the Bush administration has, for the last six years, shamed the “genius” of the American legal system by reducing it to a game of legislative ping-pong.

Although lawyers for the detainees remain confident that the Supreme Court will rule in the detainees’ favor (probably in spring 2008), this is a terrible setback for the detainees in question. Imprisoned without charge or trial for over five and a half years, they have no other contact with the outside world apart from through the minimal ministrations of the International Committee of the Red Cross, and their lawyers are often their only lifeline. This process is made that much harder when, year after year, the lawyers are driven to admit to their clients that, despite widespread opposition to the existence of Guantánamo, their attempts to bring them justice –- a day in court before a judge who can impartially weigh the evidence set before him by the government –- are repeatedly obstructed by the administration.

In all likelihood, Judge Urbina’s ruling will not shut down the lawyer-client relationship entirely. As reported by the Associated Press, Andrew Warden “outlined a series of legal steps that would be required before the attorneys could resume contact with the detainees.” After jumping through hoops and being generally belittled, more restrictive arrangements will be arranged with the lawyers, but they may come too late for the Libyan detainee Abdul Rauf al-Qassim, whose story I first reported here. Cleared by a military administrative board after five years at Guantánamo, al-Qassim, a deserter from the Libyan army, had spent a decade living in Afghanistan and Pakistan without raising arms against anyone, and was kidnapped from a house in Lahore, Pakistan, in May 2002, after fleeing Afghanistan with his pregnant Afghan wife.

Al-Qassim has spent most of this year fighting cynical attempts by the administration to return him to the country of his birth, where he has legitimate fears that he will be tortured. Wells Dixon, one of his lawyers at the Center for Constitutional Rights, explained that he would “most likely not be able to complete [the new] measures in time for a scheduled visit” with al-Qassim next month, which he described as “crucial,” because he was “in the midst of trying to prevent the government from transferring [him] back to Libya.” In measured tones, he added, “This is just the latest example of the government’s efforts to frustrate counsel access to detainees.” In a press release, another CCR attorney, Shayana Kadidal, spelt out al-Qassim’s plight in stronger terms: “We need to remember that this is a man the government has cleared for release –- as close to a statement of innocence as the government will ever issue. Abdul Rauf should never have been taken to Guantánamo in the first place, and the courts should not allow the government to ‘disappear’ him into Libya in order to cover up its own mistake.”

In a second, and far more shocking development, the Military Commissions at Guantánamo –- the widely derided show trials, which purport to provide justice, while relying on secret evidence obtained through torture –- stumbled back to life on Monday. Condemned as illegal under US law and the Geneva Conventions by the Supreme Court in June 2006, the Commissions were reinstated in the Military Commissions Act last fall, but were derailed again three months ago, when the military judges appointed to preside over the cases of child soldier Omar Khadr and Salim Hamdan, one of Osama bin Laden’s chauffeurs, shut down the trials, arguing, correctly, that the MCA had mandated them to try “illegal enemy combatants,” whereas the system that had made them eligible for trial –- the Combatant Status Review Tribunals, “administrative” hearings which also relied on secret evidence obtained through unknown means –- had only declared them to be “enemy combatants.”

After a farcical interlude, in which the administration declared petulantly that it would appeal the judges’ decisions, and was then pilloried when it transpired that the appeals court in question had not yet been established, the Court of Military Commissions Review convened a month ago in a borrowed courtroom near the White House.

Announcing their verdict on Monday, the court’s three military judges –- all appointed by the Pentagon –- agreed with Khadr’s military judge, Col. Peter Brownback, that Khadr’s classification as an “enemy combatant” at his Combatant Status Review Tribunal in Guantánamo “failed to meet the requirements for jurisdiction set forth in the Military Commissions Act,” but explained that Brownback had “erred” in ruling that a CSRT was required to determine that Khadr was an “unlawful enemy combatant” as a pre-requisite for bringing charges against him under the MCA. They added, moreover, that he had “abused his discretion in deciding this critical jurisdictional matter without first fully considering” the government’s evidence.

The decision was immediately condemned by human rights activists. Jameel Jaffer, the director of the American Civil Liberties Union’s national security project, declared, “This ruling may be a step forward for the military commissions but it’s a step backwards for the rule of law. While there are prisoners at Guantánamo who should be tried for war crimes, they should be tried under rules that are fair and that will be perceived as fair. The current rules fail this test. They permit the use of secret evidence, allow the introduction of coerced evidence, [and] limit the right of defendants to be represented by counsel of their choosing … A ruling that allows these tribunals to move forward is nothing to celebrate.”

More importantly, the verdict was also condemned by Khadr’s defense lawyers, led by Lt. Cmdr. William Kuebler, the principled military attorney, who, in the past few months, has described the Commissions as rigged, ridiculous, unjust, farcical, a sham, and a lawless process. As soon as Pentagon spokesman Bryan Whitman announced that Khadr’s trial had been revived, and that it was the Pentagon’s intention “to move out in an expeditious manner to get the military commission cases to trial,” Kuebler responded by saying that Khadr’s legal team would appeal, asking a civilian court in Washington to block the trial. “This court,” Kuebler explained, referring to the Court of Military Commissions Review, “had the chance to bring some degree of legitimacy to an otherwise lawless process,” adding, pointedly, “It failed to do so.” In a statement, he and Khadr’s other lawyers –- Dennis Edney and Nathan Whitling –- accused the military judge of “prohibited off-the-record coordination,” and explained that the date set by the Pentagon for Khadr’s trial to begin –- October 11 –- failed to allow them enough time to challenge the case. “It is the latest evidence of the government’s determination to rush forward with the flawed military commission process at breakneck speed, disregarding whatever rights of the accused that may get in the way,” Kuebler declared.

Expect more fireworks to follow from the latest in an increasingly long line of government-appointed military lawyers to have turned on their masters in the most principled manner possible. Those in any doubt that Lt. Cmdr. Kuebler means what he says should recall that in June he explained to a GQ reporter, “I think things have been done to people that under any definition except this administration’s very narrow one would be torture.”

For more on the legal struggles over Guantánamo, see my book 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 CounterPunch.

See the following for a sequence of articles dealing with the stumbling progress of the Military Commissions: The reviled Military Commissions collapse (June 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), 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), Obama’s Confusion Over Guantánamo Terror Trials (June 2009).

Back in December 2004, during a hearing regarding the definition of “enemy combatants,” Judge Joyce Hens Green asked a pointed question to Deputy Associate Attorney General Brian Boyle: “If a little old lady in Switzerland gave money to a charity … and the money was passed to al-Qaeda, could she be held as an enemy combatant?” Memorably, Boyle fell for the bait, replying, “She could. Someone’s intention is clearly not a factor that would disable detention.”

This exchange that launched a thousand appalled intakes of breath has now been commemorated in a petition, organized by US attorney Anant Raut with the help of Amnesty International in Switzerland, in which not one, but one hundred little old ladies in Switzerland (led by Charlotte Muschg, above) have signed their names to a petition urging the US administration to repeal last year’s scandalously unjust Military Commissions Act, which removed habeas corpus rights from the detainees at Guantánamo. As the petition notes, “Under current law, the US Department of Defense can declare non-US citizens anywhere in the world ‘enemy combatants’ and detain them for the remainder of their natural lives without ever charging them with a crime, even if they never knowingly supported terrorist activities.”

For the full petition, visit the website of the International Justice Network, an organization that “leads human rights initiatives around the world by providing direct legal assistance and expertise to victims of human rights abuses and by creating a global network of legal professionals, non-governmental organizations and community-based human rights advocates in order to protect and promote human rights and the rule of law.”

I urge you to visit IJN’s website. In a pioneering case, the organization –- led by former Center for Constitutional Rights lawyer Tina Foster –- is fighting for the rights of detainees in Bagram (Guantánamo’s horrendously opaque mirror-prison in Afghanistan) to be at least afforded the minimal rights to legal representation that have been long fought for at Guantánamo. This is a crucial step in dismantling the all-encompassing secrecy that shrouds the many thousands of detainees held in other “War on Terror” prisons –- in Afghanistan, in Iraq, and in other undisclosed secret locations –- where even the minimal rights obtained by the Guantánamo detainees over the last three years are not recognized.

These prisoners are held not only without charge or trial, but also without access to lawyers, subjected solely to the whims of the US administration and the military, and with no outside contact whatsoever apart from sporadic visits from representatives of the International Committee of the Red Cross. If Guantánamo ever closes, their plight –- and their untold stories –- must not be forgotten, and must be the focus of the next wave of campaigners dedicated to restoring the rule of law to a renegade administration. Tina Foster and her colleagues are to be commended on making an early start in this vital task.

Note: For the latest on IJN’s Bagram case, see the website. For a revealing insight into “extraordinary rendition” and the secret prisons –- and information on America’s Disappeared –- see Human Rights Watch’s February 2007 report, Ghost Prisoner: Two Years in Secret CIA Detention , which tells the story of Marwan Jabour, who was seized in Pakistan in May 2004, and held for nearly two and a half years in secret prisons.

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.

Prior to visiting Canada for a short tour to publicize the plight of his client, Omar Khadr (profiled here and here), US military lawyer Lt. Cmdr. William Kuebler –- whose opposition to the US government’s system of trials by Military Commission was covered here and here –- issued a press release, which succinctly explained why it remains imperative for the Canadian government to act on his behalf.

“Allegedly indoctrinated and recruited as a child soldier in Afghanistan,” Kuebler wrote, “Omar was taken into US custody after being shot and critically wounded by US forces in a firefight [in Afghanistan] at the age of 15.” He continued: “Notwithstanding its leadership in international efforts to recognize child soldiers as victims in need of special protection and rehabilitation, Canada has remained virtually silent in Omar’s case, hiding behind vague assurances from the US government that Omar is receiving humane treatment and a fair trial in face of overwhelming evidence to the contrary. As a result, Omar now faces the prospect of being the first child to be prosecuted for ‘war crimes’ in modern history. He is to be tried before a military tribunal whose procedures are designed to secure convictions based on evidence derived from torture and coercion, and that fails to meet the minimum requirements for a fair trial under international law.”

Last Wednesday, on the day that, unremarked and uncelebrated, Omar Khadr turned 21 in Guantánamo, Kuebler made a further appeal to the government and the people of Canada, explaining, as the Ottawa Citizen described it, that “Five years of incarceration in Cuba has stunted Khadr’s development at a late-adolescent level,” and that he “functions as a boy of 13 or 14 and does not have a full grasp of his situation.” “I would say generally he understands what’s happening, to the extent that any of us do,” Kuebler said in an interview on Omar’s birthday. “But it’s very clear he doesn’t have the same grasp as a normal 21-year-old man would. He has not received the social interaction. He has not received an education. He has not received any of the things that a person would need at that age to become a functional adult.”

Last month, Kuebler and his fellow lawyers –- Dwight Sullivan, Dennis Edney and Lorne Waldman –- persuaded the Canadian Bar Association to lobby for Khadr’s release, after a meeting at which Edney stated, poignantly, that, “when he saw Mr. Khadr recently, his client was so mentally debilitated that he wanted nothing more than crayons and some paper to colour on.” As reported by the Globe and Mail, Edney added, “Contrary to federal government assurances that Mr. Khadr is doing just fine, his client is actually ‘ill and going blind. He needs all sorts of help.’”

On his brief Canadian tour, Lt. Cmdr. Kuebler followed up on this success by attracting the attention of Liberal opposition leader Stephane Dion, who repeated a plea he made last month for the Conservative government to demand Khadr’s repatriation to Canada, and made a statement in which he declared, accurately, that “Canada is alone among western nations in not having secured the release from Guantánamo of one of its nationals.” He also said, as AFP reported, “Prime Minister Stephen Harper must finally ensure Khadr receives the same consular support that any other Canadian –- detainee or not –- would receive. It’s time for Canada to intervene, as so many other countries have done, to ensure that the charges against its citizens are dealt with, that he is tried in a legitimate court and that he receives due process.” Dion added that, if the US administration was unwilling to provide these assurances, the Prime Minister must “demand Mr. Khadr’s repatriation to Canada where he can be dealt with by our justice system, as has been the case with detainees from Australia, the United Kingdom and France.”

Despite securing legal support in Canada –- and apparently flying in the face of his own role as a lawyer –- Kuebler maintained throughout his visit that Khadr’s “hopes lie in a political, rather than judicial, solution.” He acknowledged that his client’s cause was unpopular in Canada –- not only because of the alleged terrorist activities of his father (who took the family to live in Afghanistan with Osama bin Laden, and was killed in a firefight in Pakistan in October 2003), but also because of “controversial statements made by other members of his family” –- but insisted that “enough is enough,” explaining, “Really, what you have is the US government attempting to punish Omar for the alleged sins of his father and the Canadian government punishing him for the sins of his family.”

It was a bravura performance. One day, when all this is over, I expect that Kuebler and his fellow JAG lawyers –- in particular, Michael Mori, who struggled long and hard to repatriate David Hicks to Australia, and Charlie Swift, who fought a principled, career-destroying battle for another detainee, Salim Hamdan –- will be heroes in a Hollywood version of their story. For now, however, it remains to be seen if Bill Kuebler has persuaded the Canadian government of its hypocrisy in standing up for the rights of other child soldiers around the world, while singularly failing one of its own.

Note: For more on the story of Omar Khadr and his family, see my book, The Guantánamo Files. I could tell you some heartbreaking tales of Omar’s experiences as a lost and lonely child in Guantánamo, but that would be a betrayal of trust: I was told them by Toronto Star reporter Michelle Shephard, and they feature in her book on Omar, Guantánamo’s Child, which will be published next year. For an extensive article by William Kuebler about the injustices of the Military Commission system, click here.

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.

Anyone dropping in on the US Senate from outer space would be confused to discover that, on Wednesday, an amendment to the Defense Authorization Bill, aimed at restoring habeas corpus rights to the detainees in Guantánamo –- rights which were granted by the Supreme Court in 2004, but which were taken away last fall in the scandalously under-scrutinized Military Commissions Act –- failed to be passed, even though a majority of senators (56 to 43) voted in favor of it.

Under the arcane rules of US Congress, two-thirds of the senators (60 in total), rather than a simple majority, were required to approve the amendment, which existed, it transpired, not in the world of common sense, but in the parallel universe of “filibusters” and “cloture” (see here for some sort of explanation). Most news outlets reported these facts without embellishment. As the New York Times described it, “Senators voted 56 to 43 to cut off debate on the proposal, 4 votes short of the 60 needed to overcome a filibuster.” The Times added, “The result put an end for now to the legislative effort to reverse a provision in a 2006 anti-terror law,” but also noted that “the matter is also before the Supreme Court.”

The clearest demonstration of well-articulated shock at the Senate’s inability to find a sufficient majority to return the most basic rights to the Guantánamo detainees came in the Nation, where Ari Melber fulminated that the Senate had failed to restore “the fundamental constitutional right of individuals to challenge government detention.” On a slightly more upbeat note, Melber also noted that the vote “suggest[ed] a new Senate majority for Habeas Corpus,” pointing out that, “Last Congress, a similar amendment did not even break 50 votes,” but adding that it was “a sad sign that we are reduced to counting votes for which members of Congress are upholding their oath to support the Constitution.”

Elsewhere, in comments that lacerated the Republican opposition for their indifference to the importance of habeas corpus, several of the senators who had backed the amendment spoke eloquently about the significance of the missed opportunity. “Habeas corpus was conceived to prevent someone from being locked up illegally, with no chance to contest his/her imprisonment. It is not a get out of jail free card. And it will not result in the release of dangerous terrorists,” Sen. Joseph Biden (D-DE) explained. “As I’ve said before, the terrorists win when we abandon our civil liberties. The way we win is to show them that we can fight this war without changing our character as a nation. I hope the Senate reconsiders this issue once again. The position urged by the Administration, that we must choose between Constitutional rights and fighting terrorism effectively, is simply wrong. Our strength as a nation, and our status as a world leader, is based in part on the fact that Americans do not choose between national security and liberty; we demand both.”

Criticism also came from Sen. Chris Dodd (D-CT), who said, “Each of us in the Senate faced a decision either to cast a vote in favor of helping to restore America’s reputation in the world, or to help dig deeper the hole of utter disrespect for the rule of law that the Bush Administration has created. Unfortunately, too many of my colleagues chose the latter.”

Senators Arlen Specter (left) and Patrick Leahy.

The amendment’s co-sponsors, Sen. Patrick Leahy (D-VT) and rogue Republican Sen. Arlen Specter (R-PA), also spoke out. Leahy said, ”We will continue to work for what is right and what is just. Like the internment of Japanese Americans during World War II, the elimination of habeas rights was an action driven by fear, and it was a stain on America’s reputation in the world … We have brought this to the Senate Floor not because it is politically easy or popular, but because it is the right thing to do. This is an issue that lends itself to politically provocative distortions. Constitutional principles need our defense not so much when it is popular to do so, as when it may not be popular or easy to do.”

Sen. Specter added that they might push for a similar bill in the future, explaining, “The truth is that casting aside the time-honored protection of habeas corpus makes us more vulnerable as a nation because it leads us away from our core American values and calls into question our historic role as the defender of human rights around the world.” Specter also made a significant speech to the Senate the day before the vote, which I reproduce in full, as it efficiently runs through the long history of the Guantánamo detainees’ attempts to be granted habeas corpus rights, and demonstrates clearly why, yet again, dozens of senators should be ashamed of the votes they cast on Wednesday.

Senator Specter’s speech

“Mr. President, I have sought recognition to comment on the amendment to restore the constitutional right of habeas corpus –- an amendment that is pending before the Senate and will be voted on tomorrow morning at 10:30 on a motion to invoke cloture.

The issue of the availability of habeas corpus for the detainees at Guantánamo is a matter of enormous importance. It is a matter of a fundamental constitutional right that people should not be held in detention unless there is an evidentiary reason to do so, or at least some showing that the person ought to be in detention. It is a constitutional right that has existed since the Magna Carta in 1215, and it has been upheld in a series of cases in the Supreme Court of the United States.

In the decision of Hamdi v. Rumsfeld, Justice O’Connor, speaking for a plurality, said that they ‘all agree that, absent suspension, the writ of habeas corpus remains available to every individual detained within the United States.’ What Justice O’Connor was referring to was the express constitutional provision in Article I, Section 9, Clause 2, that habeas corpus may not be suspended except in time of invasion or rebellion. Obviously, if there cannot be a suspension of the writ of habeas corpus, there is a provision in that clause recognizing the existence of the constitutional right of habeas corpus. You cannot suspend a right that doesn’t exist.

As amplified by Justice Stevens, in the case of Rasul v. Bush, the statutory right to habeas corpus applies to those held at the United States Naval Base at Guantánamo Bay, Cuba. Although Guantánamo Bay is not within the territory of the United States, it is under the complete jurisdiction and control of the United States.

In that case, Justice Stevens noted that ‘application of the [writ of] habeas corpus to persons detained at the base is consistent with the historical reach of the writ of habeas corpus. At common law, courts exercised habeas jurisdiction over the claims of aliens detained within sovereign territory of the realm, as well as the claims of persons detained in the so-called “exempt jurisdiction,” where ordinary writs did not run, and all other dominions under the sovereign’s control.’ That is obviously a conclusive statement of the Supreme Court that in Guantánamo, under the control of the United States, the writ of habeas corpus would apply in accordance with the historic reach of habeas corpus under the common law. Although Justice Stevens wrote as to statutory habeas, his historic analysis implicates the right to habeas under the common law and the Constitution.

Justice Stevens went on to point out: Habeas corpus is, however [citing from Williams v. Kaiser] ‘a writ antecedent to statute, … throwing its root deep into the genius of our common law.’ And continuing, he said that the writ had ‘received explicit recognition in the Constitution, which forbids suspension of “[t]he Privilege of the Writ of Habeas Corpus … unless when in Cases of Rebellion or Invasion the public Safety may require it.”’ Obviously, the exceptions –- Rebellion or Invasion –- do not apply in the Guantánamo situation. Justice Stevens went on to say: [A]t its historical core, the writ of habeas corpus has served as a means of reviewing the legality of Executive detention, and it is in that context that its protections have been strongest. Justice Stevens then went on to note this –- referring to the opinion of Justice Jackson, concurring in the result in the case of Brown v. Allen: The historic purpose of the writ has been to relieve detention by executive authorities without judicial trial. And he goes on to say: Executive imprisonment has been considered oppressive and lawless since John, at Runnymede, pledged that no free man should be imprisoned, dispossessed, outlawed, or exiled save by the judgment of his peers or by the law of the land. The judges of England developed the writ of habeas corpus largely to preserve these immunities from executive restraint. Going on, Justice Stevens pointed out: Consistent with the historic purpose of the writ, this Court has recognized the federal court’s power to review applications for habeas corpus in a wide variety of cases involving Executive detention, in wartime as well as in times of peace.

In a very curious decision, in Boumediene v. Bush, the Court of Appeals for the District of Columbia ignored the historic common law analysis of the Rasul case in concluding that the Supreme Court’s decision was based solely upon the statutory provision for habeas corpus. The Boumediene court reasoned that Rasul could be changed by an act of Congress, the Military Commissions Act, which was passed in 2006. In that case, instead of looking to Rasul, as noted in the New York Times article by Adam Liptak on March 5 of this year, the Boumediene court looked to case law decided before Rasul. Liptak points out: Instead of looking to Rasul, which was recent and concerned Guantánamo, the appeals court, reverting to the Court of Appeals for the District of Columbia, justified its decision by citing a 1950 Supreme Court decision, Johnson v. Eisentrager. That case involved German citizens convicted of war crimes in China and held at a prison in Germany. The court ruled that they had no right to habeas corpus.

Liptak points out the inapplicability of the Eisentrager case, stating: The Court’s reliance on Eisentrager was curious. Both Antonin Scalia, dissenting in Rasul, and John Yoo, an architect of the Bush administration’s post-9/11 legal strategy, have written that they understood Rasul to have overruled Eisentrager. The Boumediene decision seemed to ignore the finding in Rasul that the Naval Base at Guantánamo Bay fell within the jurisdiction and control of the United States. If detainees at Guantánamo Bay fall within United States jurisdiction, as Rasul found, the aliens held at Guantánamo have a greater claim to habeas corpus rights. For example, Courts have held that aliens within the United States cannot be denied habeas corpus without violating the Suspension Clause.

Following its discussion of Rasul and Eisentrager, the Boumediene decision relied upon the proceedings in the Combatant Status Review Tribunals which, realistically viewed, are totally insufficient. The procedures of the Combatant Status Review Tribunals were taken up by the US District Court for the District of Columbia in a case captioned: In re Guantánamo Detainees Cases, 355 F.Supp.2d 443 (2005). Beginning on page 468 of the opinion, the district court noted a proceeding in the Combatant Status Review Tribunal where an individual was accused of associating with al-Qaeda personnel. The court noted: ‘[T]he Recorder of the [Combatant Status Review Tribunal] asserted, “While living in Bosnia, the Detainee associated with a known al-Qaeda operative.” The detainee then said: “Give me his name.” The Tribunal President said: “I do not know.” The detainee then said: “How can I respond to this?” The detainee went on to say: “I asked the interrogators to tell me who this person was. Then I could tell you if I might have known this person, but not if this person is a terrorist. Maybe I knew this person as a friend. Maybe it was a person that worked with me. Maybe it was a person that was on my team. But I do not know if this person is Bosnian, Indian or whatever. If you tell me the name, then I can respond and defend myself against this accusation.”’

Later in the court’s opinion, the detainee is quoted to the following effect: ‘That is it, but I was hoping you had evidence that you can give me. If I was in your place –- and I apologize in advance for these words –- but if a supervisor came to me and showed me accusations like these, I would take these accusations and I would hit him in the face with them.’ And at that, everyone in the tribunal room burst into laughter. This is illustrative of what goes on in the Combatant Status Review Tribunals. They charge someone with being an associate of al-Qaeda, but they cannot even give the person a name.

There was a very informative declaration filed by Stephen Abraham about what goes on in a Combatant Status Review Tribunal. I ask unanimous consent to have printed in the Record at the conclusion of my remarks this declaration. Colonel Abraham identified himself as a lieutenant colonel in the US Army Reserves who served as a member of a Combatant Status Review Tribunal and had an opportunity to observe and participate in the CSRT process. Among other things, Colonel Abraham points out: On one occasion, I was assigned to a CSRT panel with two other officers … We reviewed evidence presented to us regarding the recommended status of a detainee. All of us found the information presented to lack substance. What were purported to be specific statements of fact lacked even the most fundamental earmarks of objectively credible evidence. Statements allegedly made by percipient witnesses lacked detail. Reports presented generalized statements in indirect and passive forms without stating any source of the information or providing a basis for establishing the reliability or the credibility of the source. Statements of interrogators presented to the panel offered inferences from which we were expected to draw conclusions favoring a finding of ‘enemy combatant’ but that, upon even limited questioning from the panel, yielded the response from the Recorder, ‘We’ll have to get back to you.’ The personal representative did not participate in any meaningful way. On the basis of the paucity and weakness of the information provided both during and after the CSRT hearing, we determined that there was no factual basis for concluding that the individual should be classified as an enemy combatant.

The details of Colonel Abraham’s statement are very much in line with the opinion of the US District Court for the District of Columbia in the matter captioned: In re Guantánamo Detainee Cases. They had charges but presented absolutely no information. Consequently, there can be no contention that Combatant Status Review Tribunals are an adequate and effective alternative approach to Federal court habeas corpus. There must be a type of review which presents a fair opportunity for determination as to whether there was any basis to hold a detainee. For such a purpose, Combatant Status Review Tribunals are totally inadequate.

It is for that reason that I urge my colleagues to legislate in the pending Department of Defense authorization bill to reinstate the statutory right of habeas corpus. It is my judgment that the Supreme Court of the United States will act on the case now pending there to uphold the constitutional right, disagreeing with the decision of the Court of Appeals for the District of Columbia in Boumediene v. Bush.

Initially, the US Supreme Court had denied to take certiorari in the case, and it was curious because Justice Stevens did not vote for cert. where three other Justices had. But then after the declaration by Colonel Abraham was filed on a petition for rehearing, which required five affirmative votes by Supreme Court Justices, the petition for rehearing was granted, and the Supreme Court of the United States now has that case.

I have filed a brief as amicus curiae in the case, urging the Supreme Court to overrule the District of Columbia case and to uphold the decision in Rasul v. Bush, which holds that there is a statutory right to habeas corpus and that is rooted in historic common law that predates the Constitution, tracing its roots to the Magna Carta with John at Runnymede in 1215. But pending any action by the Supreme Court of the United States, which is not by any means certain, notwithstanding my own view that the Supreme Court will reaffirm Rasul and reverse the Court of Appeals for the District of Columbia’s ruling in Boumediene, the Congress should now alter the statutory provision in 2006 and make it clear that the statutory right to habeas corpus applies to Guantánamo because of the total inadequacy of the fairness of the procedures under the Combatant Status Review Tribunal.”

Note: For more on the legal history of the Guantánamo detainees, see my book 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.

For more on Lt. Col. Stephen Abraham, see here.

The delivery of a new “terror suspect” to Guantánamo makes five new arrivals since March. Andy Worthington, author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison, looks at their stories, and asks what the administration –- under pressure in the Supreme Court, and with no functioning “war crimes” trials –- thinks it is doing.

Remember ten months ago, when the Democrats, following success in the mid-term elections, briefly held out the promise that they had teeth, and Donald Rumsfeld, the former strong man who had, in his latter days, become a laughing stock, resigned his post as defense secretary? There were, at that time, high hopes that his successor, former CIA director Robert Gates, would take a less bullish approach to Guantánamo than that of his political masters, the lonely Bush and the dominant Cheney cabal. Those with a particular surfeit of optimism even dared to think that, having tackled the tip of the iceberg, the country might then be ready to probe the dark and largely unexplored mass beneath: the network of secret and semi-secret prisons run or maintained by the CIA, or otherwise connected to the agency, which had begun to attract ferocious opposition, not just from human rights groups, but also from major international bodies including the United Nations and the Council of Europe.

Soon after taking office, Gates declared that he wished to close Guantánamo and conduct trials on the US mainland, explaining that, “because of things that happened earlier at Guantánamo, there is a taint about it,” and adding that he felt that “no matter how transparent, no matter how open the trials, if they took place in Guantánamo, in the international community they would lack credibility.” Despite support from Condoleezza Rice, however, who had inherited the State Department’s profound opposition to Guantánamo from the intel-cuckolded Colin Powell, the malignant swamp of Cheneydom was not to be drained. In no uncertain terms, the Vice President and his little puppet boy, Attorney General Alberto Gonzales, shut down all discussion of Gates’ plan, and pretended, as ever, that it was business as usual.

As the months wore on, Gates’ pragmatic opposition to Guantánamo was slowly but surely undermined, as five new “terror suspects” arrived at Guantánamo –- mostly announced without fanfare, each separated by a sufficient space of time to avoid undue attention, and generally hidden behind the coat tails of other, more distracting events.

Mohammed Abdul Malik

The first to arrive was Mohammed Abdul Malik, an apparently “dangerous terror suspect,” who, according to the DoD, had “admitted to participation in the 2002 Paradise Hotel attack in Mombasa, Kenya, in which an explosive-filled SUV was crashed into the hotel lobby, killing 13 and injuring 80,” and had also “admitted to involvement in the attempted shootdown of an Israeli Boeing 757 civilian airliner carrying 271 passengers, near Mombasa.” Malik was flown in from Kenya two weeks after 9/11 architect Khalid Sheikh Mohammed’s spectacular “confession” was still fresh, and at almost exactly the same time that Guantanamo’s remaining Australian, David Hicks, was prevailed upon to accept a plea bargain before his trial by Military Commission at Guantánamo. This should have been a humiliation for the administration, as a man it had long touted as one of the “worst of the worst” (of the worst) –- one of just a handful of detainees considered eligible for the administration’s new wave of “war crimes” trials –- was sent home with a smacked wrist to serve just nine months in prison in Australia after confessing that he had “provided material support for terrorism.”

Remarkably, however, the administration rode through the criticism –- primarily, that the Military Commissions were a total farce, and that Hicks was so desperate to go home that he agreed to drop all his legitimate and well-documented claims that he was abused by the US military in Afghanistan, on US warships and in Guantánamo –- and emerged relatively unscathed, having managed, additionally, to smuggle a relative nobody into Guantánamo from Kenya without having to reveal anything of the new front in the “War on Terror” that it had embarked upon in the Horn of Africa. However malign, this was quite an achievement. Almost unnoticed, the waning world of “disappearances” and secret prisons was revived with a vengeance in Africa, conducted, this time, by FBI agents instead of the tarnished operatives of the CIA, but with the innovative addition of kidnapping dozens of women and children as well as their allegedly militant menfolk.

Abdul Hadi al-Iraqi
A month later, the administration followed this up with a more audacious delivery: that of Abdul Hadi al-Iraqi, a suspect who was sold more aggressively to the public, as he ticked a lot of boxes that the administration wished to have connected in voters’ minds. An Iraqi, and a member of al-Qaeda in Afghanistan, al-Iraqi was described in a DoD press release as “a high-level member of al-Qaeda” and “one of al-Qaeda’s highest-ranking and experienced senior operatives.” The DoD added that, at the time of his detention, he was “associated with leaders of extremist groups allied with al-Qaeda in Afghanistan and Pakistan, including the Taliban,” and that he had “worked directly with the Taliban to determine responsibility and lines of communication between Taliban and al-Qaeda leaders in Afghanistan, specifically with regard to the targeting of US Forces.”

In a separate “high-value” detainee profile –- similar to those issued after 14 other “high-value” detainees, including Khalid Sheikh Mohammed and Abu Zubaydah, were transferred to Guantánamo in September 2006 –- further details were provided about al-Iraqi’s activities and connections, including claims that he was “known and trusted by [Osama] bin Laden and Ayman al-Zawahiri,” and “at one point was al-Zawahiri’s caretaker,” that he worked “for a long time” as an instructor in an al-Qaeda training camp in Afghanistan, and that he was a member of al-Qaeda’s ruling Shura Council and its Military Committee.

Speaking after the announcement of his transfer was made, Pentagon spokesman Bryan Whitman added a few additional morsels of information, explaining that he had been transferred to DoD custody from the custody of the CIA, although he “would not say where or when al-Iraqi was captured or by whom.” Expanding on the CIA custody angle, USA Today reported that a US intelligence official, “speaking on condition of anonymity because of the sensitivity of the matter,” explained that al-Iraqi had actually been captured “late last year in an operation that involved many people in more than one country.” This admission confirmed, therefore, that al-Iraqi had been secretly held in US custody for at least four months before his transfer to Guantánamo, and also suggested that the time of his transfer was chosen for its political impact.

Abdullahi Sudi Arale

The third arrival was delivered in early June. Abdullahi Sudi Arale, a Somalian, received little fanfare, perhaps because the spotlight on terror had been dimmed following the death, the week before, of a fourth detainee at Guantánamo, a Saudi –- and long-term hunger striker –- named Abdul Rahman al-Amri. Possibly, however, his arrival was little trumpeted because it involved the deliberately under-reported “War on al-Qaeda” in the Horn of Africa, and because the administration had very little information to offer about him. In almost questioning terms, Arale was described as a “suspected” member of “the al-Qaeda terrorist network in East Africa,” who served as “a courier between East Africa al-Qaeda (EAAQ) and al-Qaeda in Pakistan.”

In a press release, the DoD added that, after returning to Somalia from Pakistan in September 2006, he “held a leadership role in the EAAQ-affiliated Somali Council of Islamic Courts (CIC),” and noted, with distressing vagueness, that there was “significant information available” to indicate that Arale had been “assisting various EAAQ-affiliated extremists in acquiring weapons and explosives,” that he had “facilitated terrorist travel by providing false documents for AQ and EAAQ-affiliates and foreign fighters traveling into Somalia,” and that he had “played a significant role in the re-emergence of the CIC in Mogadishu.” Unmentioned, of course, was the subtext of the situation in Somalia: the role of the CIC in returning some semblance of order to one of the world’s least-governed countries, and the US government’s use of Ethiopia as a proxy army in yet another secret, dirty war.

Haroon al-Afghani

The fourth new Guantánamo detainee arrived a fortnight later. Buoyed up, perhaps, by midsummer weather, and secure that parts of the media were not paying too much attention to who was arriving in Guantánamo, and were, instead, agitating about the plight of US “enemy combatant” Ali al-Marri and the departure from Guantánamo of two cleared detainees who were sent to Tunisia where they faced the risk of torture, the DoD touted Haroon al-Afghani as a “dangerous terror suspect,” who was “known to be associated with high-level militants in Afghanistan,” and had apparently “admitted to serving as a courier for al-Qaeda Senior Leadership (AQSL).” The Pentagon also reported that there was “significant information available” that he was a senior commander of Hezb-e-Islami Gulbuddin (HIG), an anti-US militia led by renegade Afghan warlord Gulbuddin Hekmatyar. Despite never having disguised his loathing of the United States, Hekmatyar was, ironically, one of the major recipients of billions of dollars of American money to fight the Soviet Union in the 1980s, which was channeled to him through his supporters in Pakistan’s intelligence services, the ISI. According to the DoD, al-Afghani “commanded multiple HIG terrorist cells that conducted improvised explosive device (IED) attacks in Nangarhar Province” (centered on Jalalabad) and was ”assessed to have had regular contact with senior AQ [al-Qaeda] and HIG leadership.”

Like Abdullahi Sudi Arale, Haroon al-Afghani arrived with less aplomb than al-Iraqi, presumably because, despite the links between al-Qaeda and Iraq that the administration had so mercilessly pumped in the latter’s case, some churlish commentators had refused to ignore the implied existence of secret prisons that were not supposed to exist anymore, and had attempted to rake up issues that the administration considered dead and buried –- or at least locked up far away in grave-like tombs in unnamed foreign countries. The misunderstanding was based on an announcement by the President, in September 2006 –- after KSM and the 13 other “high-value” suspects arrived at Guantánamo –- that the secret prison program, which had not entirely escaped the notice of the Supreme Court in June, had now been closed down. Speaking to the world from the White House, the President claimed, “The current transfers mean that there are now no terrorists in the CIA [secret prison] program.” This appeared to be a clear-cut confession that the program had been closed down, but it was followed by a warning that, “as more high-ranking terrorists are captured, the need to obtain intelligence from them will remain critical –- and having a CIA program for questioning terrorists will continue to be crucial to getting life-saving information.” Just seven months after Bush’s speech, the case of Abdul Hadi al-Iraqi revealed, uncomfortably, that, at best, the CIA’s secret prisons had only remained empty for a couple of months.

Inayatullah

And finally –- for now, at least –- last Wednesday another new boy, an Afghan identified only as Inayatullah, flew into Guantánamo from Afghanistan. Captured, according to the DoD’s press release, “as a result of ongoing DoD operations in the struggle against violent extremists in Afghanistan,” the DoD claimed that Inayatullah had “admitted that he was the al-Qaeda Emir of Zahedan, Iran, and planned and directed al-Qaeda terrorist operations,” adding that he “collaborated with numerous al-Qaeda senior leaders, to include Abu Ubaydah al-Masri and Azzam, executing their instructions and personally supporting global terrorist efforts.” (Al-Masri and Azzam were not identified in the DoD’s press release, but the former is an Egyptian-born al-Qaeda commander in Afghanistan’s Kunar province, and the latter is probably the American Adam Gadahn, known as Azzam the American, who has produced al-Qaeda propaganda with Ayman al-Zawahiri).

In further unwieldy prose, the DoD noted, “Inayatullah attests to facilitating the movement of foreign fighters, significantly contributing to trans-national terrorism across multiple borders,” claiming that he “met with local operatives, developed travel routes and coordinated documentation, accommodation and vehicles for smuggling unlawful combatants throughout countries including Afghanistan, Iran, Pakistan and Iraq.” Like the other new arrivals, he will –- at some unspecified time in the future –- be subjected to a Combatant Status Review Tribunal, which will find that he has been correctly designated as an “enemy combatant,” and the administration will then, presumably, push all five men forward for trial by Military Commission.

While these new deliveries have done little for the reputation of Robert Gates, confirming that the White House has as much disdain for the new-look DoD as it does for the State Department, the arrival of these men at Guantánamo also demonstrates that, although the administration is willing to clear out some of the dead wood at Guantánamo, by sending home the husks of innocent men and Taliban foot soldiers who have been ruthlessly exploited for “intelligence” for over five years, it is still committed to pressing ahead with the Military Commissions at Guantánamo –- a bargain basement judicial system, which, by imperial command, seem to have been especially designated “For Muslims Only.” Side-stepped by David Hicks in March, the Commissions remain as toxic and unreliable to those concerned with the rule of law as the tribunals at Guantánamo, designed to conceal all evidence of torture on the part of the US authorities, to conceal secret evidence from the defense lawyers, and to secure pre-ordained verdicts of guilt.

The Military Commissions

To recap briefly, the entire Military Commission process began in November 2001, when, with the utmost stealth, and with no oversight whatsoever, Dick Cheney arranged for the President to grant himself the power to detain anyone at will, and to try them in kangaroo courts of his own devising. After starting, and stalling, several times in the intervening years, the Commissions were ignominiously extinguished by the Supreme Court in June 2006, which ruled decisively that they were illegal under US law and the Geneva Conventions. Following this decision, the administration responded to a sliver of hope offered by one of the Supreme Court judges –- Justice Stephen Breyer, who pointed out that “Nothing prevents the President from returning to Congress to seek the authority he believes necessary” –- by doing just that, drafting new legislation, which was almost exactly the same as the old legislation, on the back of a cigarette packet, and pushing the Military Commissions Act through a comatose Congress last fall.

Resuscitated, zombie-like, through this complete failure on the part of Congress to challenge the White House’s lust for unbridled power, the Commissions spluttered unchallenged through the Hicks farrago, but failed to blaze back to triumphant life in June, when child soldier Omar Khadr and Salim Hamdan, one of Osama bin Laden’s chauffeurs, were wheeled out to face the “war crimes” charges evaded by Hicks. The new style Military Commissions were regarded by those still in touch with the rule of law –- primarily the detainees’ own government-appointed military lawyers –- as being as ad hoc and monstrously illegal as the system thrown out by the Supreme Court, and the lawyers were looking forward to a fight, relishing the opportunity to challenge the spurious basis of the “war crimes” charges, and as determined as ever to do whatever they could to prevent the administration from succeeding in its malign attempts to destroy a centuries-old judicial system that was just and efficient, and to replace it with a system of show trials that would have done Stalin proud.

Astonishingly, the revived system collapsed on its first day, when, in independent decisions, both of the government-appointed military judges, Army Colonel Peter Brownback and Navy Captain Keith Allred, shut down the proceedings, pointing out, with a lawyer’s eye for detail, that the MCA mandated them to try “illegal enemy combatants,” whereas the two men before them –- and everyone else in Guantánamo, for that matter –- had only been determined to be “enemy combatants” in the tribunals that had made them eligible for trial in the first place. Blustering impotently about semantics (and ignoring its own semantic crimes over the preceding five years), the administration responded by wailing that it would appeal the decision in the appeals court for the Military Commissions, and was mocked when it transpired that that the court in question –- like so much of the architecture of the Commissions themselves –- had not yet been established.

This oversight was finally remedied two weeks ago, and the court is due to make a decision in the coming weeks, but the military lawyers representing Khadr and Hamdan have refused to be cowed, and one of them, Lt. Cmdr. William Kuebler, explicitly told journalists after the hearing, “This is a lawless process,” and stressed that the hoped-for demolition of the rigged system was “about the credibility of the United States and the perception around the world of our commitment to the rule of law.”

While the future of the entire system of Military Commissions hangs in the balance –- and with schools of lawyers already circling the Supreme Court in the hope that the wavering justices will soon deliver a crushing verdict on the illegality of the whole Guantánamo operation –- this does not seem, under any circumstances, to be the right time to brag, as the administration did last week, that it was building a vast tent city, on an unused runway at Guantánamo, to hold “war crimes” trials beginning in March 2008, with as many as six trials taking place simultaneously, and to follow this up by flying yet another detainee into Guantánamo. But this is, perhaps, no longer the real world, and is, instead, just the latest and most outrageous manifestation of the blinkered, belligerent, bellicose Bush-and-Cheney World, an ever-shrinking war bunker in which the will alone matters, and it has been entirely forgotten that one man’s will power may be another man’s manifestation of psychotic delusions.

Note: Al-Hadi’s name is also transliterated as Abd al-Hadi al-Iraqi, and the DoD revealed that his real name is Nashwan Abd al-Razzaq Abd al-Baqi.

POSTSCRIPT: A sixth prisoner, Muhammad Rahim, was transferred into Guantánamo in March 2008. Apparently regarded as a “high-value detainee,” along with Abdul Hadi al-Iraqi (and unlike the other four new arrivals, whose transfer to Guantánamo was therefore inexplicable), he was described as being “in his 40s” and “a native of Nangarhar Province in Afghanistan,” according to the New York Times, which also reported that he had “fought battles for two decades,” and was described by government officials as an al-Qaeda planner and facilitator “who at times in recent years had been a translator for Osama bin Laden.” Apparently captured in Lahore in August 2007, he, like al-Iraqi, was held in secret CIA custody before his transfer to Guantánamo, even though President Bush had declared in September 2006, when 14 “high-value detainees” arrived in Guantánamo, that the CIA’s secret prisons were now empty. In a message to CIA employees, Gen. Michael Hayden, the CIA’s director, described Rahim as a “tough, seasoned jihadist” with “high-level contacts” who, in 2001, had “helped prepare the Afghan cave complex of Tora Bora as a hideout for Qaeda fighters fleeing the American-led offensive.”

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 Antiwar.com.

Andy Worthington is a London-based historian, who has written three books on civil rights issues, including, most recently, The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison, scheduled for release in October, which is the most detailed and specific account to date of the capture and provenance of the over 700 men and boys that the United States has held at Guantánamo Bay, Cuba pursuant to the so-called “war on terror”. On September 6, 2007, I had the privilege of interviewing Mr. Worthington by telephone; what follows are my interview notes, corrected as appropriate by Mr. Worthington.

The Talking Dog: Where were you on 11 September 2001? Where were you on 7 July 2005?

Andy Worthington: On 11 September, I was in my home in south London, at my computer. My wife was not working that day, and ran to get me and told me to come to the television, and I watched at the time that the second plane hit the World Trade Center. On 7 July, I was also in London, though not in the center of the city. I heard about the events from news reports.

The Talking Dog: You have, of course, compiled the most detailed provenance of the Guantánamo prisoners that I am aware has ever been assembled. I’m wondering if, at this point, you can tell us some overall statistics, i.e., as far as you know, how many men have we held at Guantánamo, how many have we released, how many men have engaged in no acts against the United States or its allies, and how many men, at least based on accepting the government’s actual stated evidence (assuming it’s true), could properly be called “terrorists”?

Andy Worthington: The total number of those officially held at Guantánamo is 778. The subtitle of my book began as “759 Detainees”, and then the 14 “high-value” detainees — including Khalid Sheikh Mohammed and Abu Zubaydah — arrived at Guantánamo in September 2006, and then another alleged terrorist arrived from Kenya in March 2007, making 774 detainees in total. After I completed the manuscript, I made a conscious decision not to try to constantly update it, which is why the book does not include the four new detainees who were transferred after the manuscript was completed. That four more men have been transferred to Guantánamo amidst the current climate of controversy is somewhat shocking. Not only is the United States not closing Guantánamo, it is adding more detainees!

The total released is 430; that is to say, released or, in rather fewer cases, transferred to continuing custody in their home countries.

The figures that Mark and Josh Denbeaux came up with in the Seton Hall studies are interesting as a starting point. Their report showed that 86% of detainees were not captured by the United States, 55% committed no hostile acts, and only 8% had any affiliation whatsoever with Al Qaeda. Their analysis reflected a review of the 550 or so detainees in custody at the time they obtained their data. By that time, 200 detainees — mainly Afghans and Pakistanis, but also a small spread of detainees from dozens of other countries — had already been released, so overall, we’re looking at even higher percentages of those who committed no hostile acts and a lower percentage of likely terrorists. This is not just because of the additional 200 freed detainees, but also because the government’s own allegations are not necessarily credible.

The overall story that I tell in the book is based on trying to judge between the allegations of the government and (to the extent available) the detainees’ own stories, and to assess the overall context for bases of reliability. The reason for the difficulty is the unique circumstance of Guantánamo. In an ordinary legal process, we can accept the results, even recognizing that errors will be made, because the process is regarded as fair and transparent. In the case of Guantánamo, all we have are allegations and counter-allegations, which makes things much harder, particularly where the government’s allegations are often so vague as to be barely recognizable.

That said, the 8% figure of detainees with any association with Al Qaeda found by the Denbeauxs is certainly in the right sort of range. My research indicates that it is perhaps more like 3 or 4% — a couple of dozen detainees at most — not counting the so-called 14 “high value” detainees.

What I discovered was that substantial numbers of the men held were humanitarian aid workers, teachers of the Koran, or economic migrants — and so many of the men released have fallen into this category, particularly those from the Gulf countries and north Africa. The Afghans — and there were nearly 220 Afghans at one point — are another, separate issue, that I will address later on. But while some Arabs were indeed fighting with the Taliban (possibly as many as hundreds were), they were not, in most cases, associated with Al Qaeda. They were mostly following fatwas to help the Taliban establish a “pure Islamic state’ by defeating the Northern Alliance (who are also Muslims) in a civil war that began long before 9/11, and most of these men arrived in Afghanistan long before 11 September, and were not fighting the United States or its allies. They were following a historical tradition of aiding the mujahideen, who were, of course, first organized by none other than the CIA. So there were certainly large numbers of foot soldiers, though they had no knowledge whatsoever of terrorism, or the broader issues or intelligence that they have been accused of having.

The Talking Dog: In the course of your research, can you tell me which former detainees you have met, which families of detainees, which attorneys, and others, and can you tell me who made particular impressions on you? Other than such meetings and interviews, can you briefly describe your methodology?

Andy Worthington: This was largely an internet-based project. The United States government had not even released the names and nationalities of the detainees until the spring of 2006, when the Associated Press took the government to court and won and the government was ordered to release various data including 8,000 pages of transcripts of the Combatant Status Review Tribunals, which were convened, two and a half years after Guantánamo opened, to assess whether the detainees had been correctly designated as “enemy combatants”, and their successors, the annual Administrative Review Boards, which were convened to assess whether the detainees still constituted a threat to the US, or if they had ongoing “intelligence value”. With the release of these documents, the jigsaw pieces were then in place to go through as I did, in an effort to figure out who was captured when and under what circumstances. That is the major part of the methodology, and it was quite a task; so much so that nobody else seems to have attempted it.

I also spoke to a number of lawyers to find out additional stories, and these included many helpful individuals, including Marc Falkoff, Candace Gorman, Clive Stafford Smith and Zachary Katznelson of Reprieve, Anant Raut and many others.

I also investigated as many interviews with released detainees as I could locate. I then googled variations on people’s names and events and tried to piece together the sequence of events that followed the US-led invasion in October 2001. Many of the 200 detainees who were released before the tribunal process began, for example, returned to their towns and villages without their stories being reported at all, although I managed to piece together what information I could from news reports. Of the 90-odd Afghans released between 2002 and 2004, no one knows who or where many of them are, even if the United States military was coherent enough to know who it was holding!

In the early days, numerous reporters were in Kabul to greet the various waves of released Afghan detainees, but as time went on they lost interest, and there has been so little interest in the last few years that it’s not even possible to know exactly which Afghans have been released in the last eighteen months. The administration never releases the names of those it releases, and often it’s only those with lawyers (who have to be informed by the government) whose stories get reported.

The Talking Dog: Have American (or British) government or military officials been willing to talk to you? If so, can you briefly tell us who, and what they told you?

Andy Worthington: I did not even try for the obligatory “no comment”. I did call the Pentagon’s Freedom of Information office to try to fill in a few gaps with the ISN numbers (detainees are, to this day, identified by numbers — Internment Serial Numbers — rather than by name). For example, in the numbering system, there is an almost unbroken chain of numbers up to ISN 372, from the first, crucial few months of the transfer process when almost everyone who came to be in US custody was sent to Guantánamo, but there are a few numbers missing, including, most noticeably, ISN “1″. ISN “2″ was the Australian David Hicks, and I am convinced that ISN “1″ was John Walker Lindh, as he was the prime prisoner, until they realized that he was a U.S. citizen and, under the scheme they set up, they couldn’t send him to Guantánamo. The Pentagon insisted that any missing numbers reflected detainees that simply never existed, or that the number was never assigned to an individual, but I’m not convinced by that explanation.

The Talking Dog: Can you briefly describe the basic history of how we acquired so many guests from Afghanistan, and how that correlates with the escape of Osama bin Laden, Ayman al-Zawahiri and most of Al Qaeda’s leadership? As far as you know, why isn’t this more widely known?

Andy Worthington: My impression is that when the Bush administration decided to topple the Taliban and then topple or preferably kill the Al Qaeda leadership, by making alliances with warlords and sending in a few hundred special forces operatives — that the intent was simply not to deal with prisoners at all, but simply to kill the Al Qaeda and Taliban leadership. No one expected to encounter significant numbers of prisoners, or the sequence of events as they happened, such as the fall of previously Taliban controlled cities in the north of Afghanistan, which fell like dominos in November 2001. After this collapse, there ended up being a large number of rump Taliban fighters and assorted others like shopkeepers and farmers, and the first large group converged on the city of Kunduz, where a peaceful surrender was negotiated, and where the first large group of prisoners had to be dealt with. Initially, they were dealt with by the Afghan warlord General Dostum, who famously was a military leader aligned with the Russians in the 1980s! After the prisoners began to accumulate, it dawned on the American military that some of the prisoners might have useful intelligence. First, these prisoners were kept in prisons established at US bases in Kandahar and Bagram, and then later they were sent to Guantánamo.

The second group after Kunduz accumulated after the disastrous Tora Bora campaign, the campaign during which Osama bin Laden, Ayman al-Zawahiri and numerous other senior Al Qaeda and Taliban leaders made their escape to Pakistan. Basically, the American forces bombed the Al Qaeda and Taliban positions in the mountains, but failed to guard the Pakistani border, and the Pakistanis had to negotiate with the semi-autonomous border tribes to gain access to the border on their side. It was only after almost everyone of significance had escaped that the United States forces and their allies managed to sweep up every Arab in sight, most of whom were fleeing the devastation of the war unleashed, whether combatants or not. The largest group of detainees in Guantánamo — several hundred men in total — were captured at this time.

Quite a few others were captured in Pakistan — at least 120, actually. Of course, at this time, the Americans were offering “a lifetime’s worth” of money as bounties. Needless to say, there were numerous random arrests of any Arab men in Pakistan at this time.

As to why more people don’t know these facts, I don’t really know why this isn’t more widely known. In large part, the history of that time was not revisited as everyone moved on to Iraq and it became ancient history. It was quite strange piecing together the story into a coherent sequence of events from various news accounts, which made clear what was going on at that time, knowing that few others seemed to be interested, even though, as I pointed out before, the scope of the internet is such that it’s possible to gain access to a vast number of documents without leaving your home or office.

The Talking Dog: From the stories of the men you encountered in compiling The Guantánamo Files, can you give me one or two of the most compelling examples in terms of the capture and holding of innocent people, examples of abuse you are aware of, and perhaps any other stories that strike you as worthy of note?

Andy Worthington: There are many, many more stories than just the few examples I can provide now, but I’ll try to pick out a few. Some are quite telling. One story that always struck me, and that concerned the sheer number of those captured who were simply humanitarian workers, is that of three Saudi school teachers, who tried to help out Afghan refugees on the border with Iran. They gave out money in refugee camps in Afghanistan, but then they were not allowed back into Iran (which was common practice by Iran, a Shiite nation, particularly with respect to Sunnis). These men stewed in Afghanistan, and kept trying, for a month, to get back into Iran. When it became apparent that they were not going to be let back in, they tried to get into Pakistan, where the police asked for bribes, and when they refused to pay (they contended they were law abiding people and didn’t need to and shouldn’t pay such bribes) they were promptly arrested and sold to the Americans, based on utterly baseless made-up allegations. It is telling that one of them – Wasim al-Omar — commented on how he felt about being sold, and said that it is a hard truth when human beings are bought and sold, which takes us back to the days when human beings had no value, and indeed, had no human rights at all.

To give you another example, which deals with the treatment of the detainees, there are countless examples of people being treated with appalling brutality, but one that stands out in particular is the story of Mohammed al-Qahtani, an alleged “20th hijacker” for 9/11, who was tortured on the close advice of Donald Rumsfeld in late 2002. This treatment was so brutal that it prompted the FBI to complain, and it illustrates the divide between the various groups of interrogators who were working at Guantánamo: on the one hand, those from the CIA and the Department of Defense, who implemented the “enhanced interrogation techniques” favored by the White House and the Pentagon, and, on the other hand, those from agencies such as the Naval Criminal Investigative Service (NCIS) and the FBI, who were resolutely “old school” — they believed interrogations were based on building relationships, and were carried out by skilled people. No matter how despicable or guilty the suspect was or was believed to be, trust building techniques were required to obtain proper intelligence.

Unfortunately, Vice President Dick Cheney, his chief counsel David Addington, John Yoo, Donald Rumsfeld and others were driving the “War on Terror” policy and were responsible for implementing these policies of brutal interrogation, and they have not yet been held accountable. There was a good Washington Post series on Cheney a few months back, which highlighted the role played by the Vice President and Addington, although neither of them agreed to speak about it. To his credit, John Yoo at least spoke out and tried to defend the government’s position. You’ll notice that I haven’t mentioned Alberto Gonzales, the outgoing Attorney General. For all of the damage Gonzales caused, putting his name to the January 2002 memo that dismissed the Geneva Conventions as “quaint”, all the evidence suggests that he was little more than a patsy, and that the memo, like the infamous “Torture Memo” of August 2002 (which attempted to redefine torture, claiming that the only actions that counted as torture were those that resulted in serious organ failure or death) was actually the work of Addington, Yoo and Cheney.

The Talking Dog: I must confess that although I try to be well-informed on these matters, there was a wealth of new information I was not aware of in your book. What do you consider to be the most significant not-widely-known revelation in your book?

Andy Worthington: My genuine hope is that the whole book will function as a significant revelation in its own right. What is new in terms of information — besides elucidating the specific stories of how so many innocent men were swept up in all of this — is information I uncovered concerning the ghost prisoners, that, as far as I know, has not been reported anywhere else. This whole area of the ghost prisoners will likely be the next big story coming out of all of this.

The Talking Dog: You, of course, are in Britain; can you tell me why, in your view, the British media and the British public seem more interested in Guantánamo issues than does the American office, and do you feel this will change once the remaining UK residents are returned home, as new PM Brown has requested?

Andy Worthington: Historically, the British were very interested in Guantánamo from the inception of the so-called “war on terror”, because nine British nationals were held at Guantánamo (they were all brought home in 2004 and 2005). Tony Blair’s attitude was that he wanted these people returned so that public opinion would get “off his case”. Arguably, Guantánamo is actually less significant here now, since their release, and might be less still if the British resident non-nationals are returned.

In the United States, there has been a very long, slow process of awakening. Unfortunately, it has been painfully long and slow, but there are encouraging signs — throughout much of the media, for example, in “close Guantánamo” editorials that appear in the most unlikely places — that the tide is turning. I certainly hope so, and I hope that my book will provide a convenient “one-stop shop” for those wondering what has been done in their name.

Additionally, in the UK, the issue of Guantánamo became tied directly into the motives of “the US-led coalition” of which Britain is an integral part, which, of course, includes the invasion of Iraq, which made many people very suspicious of anything connected to it. At this point, the new administration led by Gordon Brown has asked for five remaining UK residents to be returned, although interestingly, not a sixth, the Algerian national Ahmed Belbacha, who fled to Britain in 1999 after being threatened by militants while he was working for a state-owned oil company. Like many other detainees, Mr. Belbacha was captured in Pakistan while on holiday, but although all the allegations against him have been proven ludicrous and he was cleared for release earlier this year the British government refused to accept him back, because he was not technically a British resident at the time of his capture. He had applied for asylum before he took his ill-fated holiday in 2001, and had actually been in Guantánamo for a year when his application was turned down, but he was granted leave to remain instead. So, on a technicality, the British have refused to accept him back, and the Americans therefore want to send him back to Algeria, even though he doesn’t want to be returned to Algeria for fear of torture or worse. So while the Brown administration looks like it is “more caring” than Blair’s, as it has requested the five residents returned, it is remarkably callous regarding Mr. Belbacha’s fate, on that technicality. I certainly hope that the five are returned, but this all does smack of Brown’s announcement being a PR stunt to a certain extent. I understand that negotiations for the return of the men have not yet begun in earnest, and the Bush administration also makes things much harder for everyone by continuing to assert that these men are the world’s most hardened terrorists, even as it prepares to release them!

When the full story of Guantánamo comes out (and I hope that my book is at least an important staging post in this story), it will be shown just how shameful and how badly the whole thing has been dealt with overall; not merely the abuses and injustices (and the unforgiveable torture), but how absolutely stupid so much of this has been.

To further illustrate this, and to discuss one group of detainees that I’ve barely touched upon, I’d like to mention the stories of the Afghans, so many of whom were simply betrayed by rivals or hostile neighbors, and nearly all of whom were handed over for bounties, with the Americans completely oblivious of who they were. Many of them were actually on the Americans’ side, working with US special forces, or working for the new government of Hamid Karzai, and were handed over by rivals who had got the Americans to trust them, secure in the knowledge that they would not investigate the backgrounds of the stories they were told, and that the different groups of Americans in Afghanistan were not talking to each other. And I’m not talking about isolated incidents here — there are dozens of pro-US Afghans who were ensnared by lies and sent to Guantánamo, and many, many more who were picked up in raids based on spurious “intelligence”.

The Talking Dog: What do you see, from your research and trends thus far, as an “end game” or “exit strategy” from Guantánamo? Do you have any optimism for a political settlement or a legal resolution… or public opinion to change… or something else? Do you anticipate any of the likely candidates to be the next American president (i.e., the Democrats) to continue Guantánamo, Bagram, etc. in their current form?

Andy Worthington: To some degree, this mess will simply be dumped on the next President, whoever that is. This is actually a very difficult question to answer. The Supreme Court, reversing itself for the first time in decades, has agreed to take the Al-Odah and Boumediene cases, and it will likely end up ruling against the government. In the meantime, ahead of this, the government has been trying to empty the place. The United States has, as a result, been sending men to countries where they will likely be tortured — Tunisia, for example — and they will keep trying to do so based on worthless “diplomatic assurance” letters and similarly meaningless “agreements”. It’s really difficult to fathom how they’re going to empty Guantánamo given the status of some of these individuals — for example, many economic migrants or refugees. What do you do with a Sudanese who has been in Pakistan for 20 years? Must they go back to a country they have fled, because Pakistan won’t reach an agreement to take them? Or, is it not a better answer that, as the United States has created this mess, the United States has a moral, if not a legal duty, to offer them asylum inside the United States?

And then, of course, we get to the 80 or so “hard core” terrorists (the government asserts this number), the worst of the worst of the worst, etc. What is to be done? Supposedly a tent city for military trials is being built at Guantánamo, and six simultaneous trials are anticipated starting in the spring. But there is presently no functioning military commission system! The military has ruled against itself on this! And further, how does one create a second-tier legal system that conveniently excludes allegations of torture?

As the Jose Padilla case has shown us, for these men, juries might still convict even in an apparently proper looking trial… but at some point, the issue of torture must rear its ugly head. It is absolutely crucial that it be addressed, and the new administration that takes over in 2009 needs to end this, for the sake of every level — moral, political, legal… these practices must just end.

The Talking Dog: Is there anything else I should have asked you but didn’t, or anything else on these subjects that my readers, your readers and the world public need to know?

Andy Worthington: I’m sure I’ve mentioned this before, but the United States needs to return to the rule of law. The world needs to know that the abandonment of American and international law by the Bush administration has been an absolute disaster, and that, under the guise of protecting American security, the President has granted himself dictatorial powers, which were crafted by Cheney and Addington, who continue to believe that the Executive should be beyond the accountability of anyone — any other branch, the legislature, the courts, or even the electorate. Cheney and Addington have believed this a long time — Cheney since his days in the Nixon administration, and Addington from at least the time of Ronald Reagan, when he worked with Cheney to protect Reagan from scrutiny during the Iran-Contra scandal. Your Founding Fathers tried to limit the Executive branch’s power very carefully. It is time to reassert those limits.

The Talking Dog: I join all my readers in thanking Andy Worthington for that fascinating interview, and commend anyone interested in this subject to take a look at The Guantánamo Files.

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 Talking Dog, a sharp and insightful blog that also features dozens of other interviews related to Guantánamo and the “War on Terror”. (Also cross-posted on The Moderate Voice).

Those interested in the old-fashioned printed word –- on paper, rather than the cyber variety –- may be interested in three new developments. Firstly, copies of The Guantánamo Files are back from the printers, and all those involved have done a fine job. It’s now just three weeks to publication, and copies can be pre-ordered from Pluto Press in the UK or the University of Michigan Press in the US. Amazon (US, Canada, UK) can also oblige.

Secondly, the latest issue of Index on Censorship, the essential quarterly magazine that has been defending the right to free expression since 1972, is out this week, featuring a wealth of fascinating articles on the Middle East, and on data control. Also included is “Wrong Place, Wrong Time,” in which I explain how I came to research and compile The Guantánamo Files, and what my research revealed.

And finally, “Scenes from the Struggle for the Rights of The Guantánamo Detainees,” an article based on two reports about the latest developments regarding the Guantánamo detainees, in the Supreme Court and in the appeals court for the recently-derailed Military Commissions, is featured in the latest print edition of CounterPunch, which also features Alexander Cockburn and Jeffrey St. Clair on “The Vices of Hillary Clinton,” and Eva Liddell on the similarities between George W. Bush and an earlier presidential disaster area, William McKinley.

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Those with the stomach to see Guantánamo not just as a deadly serious affront to justice and human decency, but also as a dark farce, will have been entertained by the recent disclosure that the US military has accused Clive Stafford Smith, the legal director of Reprieve, and his colleague Zachary Katznelson, of smuggling underwear into Guantánamo for two of their clients: Shaker Aamer, a British resident who has been held in solitary confinement since September 2005, and Mohammed El-Gharani, a Saudi resident, whose parents were born in Chad, who was just 14 years old when he was seized in a random raid on a mosque in Pakistan.

In the hope of revealing the extent to which the administration at Guantánamo is both paranoid and utterly devoid of humour, I reproduce below the complete text of the recent correspondence between the Navy Commander at Guantánamo who was charged with making a complaint to Stafford Smith, and the lawyer’s lengthy and hilarious reply:

August 12, 2007

Re: Discovery of Contraband Clothing in the Cases of Shaker Aamer, Detainee ISN 239, and Muhammed Hamid al-Qareni, Detainee ISN 269

Dear Mr. Stafford Smith.

Your client, Shaker Aamer, detainee ISN 239, was recently discovered to be wearing Under Armor briefs and a Speedo bathing suit. Neither item was issued to the detainee by JTF-Guantánamo personnel, nor did they enter the camp through regular mail. Coincidentally, Muhammed al-Qareni, detainee ISN 269, who is represented by Mr. Katznelson of Reprieve, was also recently discovered to be wearing Under Armor briefs. As with detainee ISN 239, the briefs were not issued by JTF-Guantánamo personnel, nor did they enter the camp through regular mail.

We are investigating this matter to determine the origins of the above contraband and ensure that parties who may have been involved understand the seriousness of this transgression. As I am sure you understand, we cannot tolerate contraband being surreptitiously brought into the camp. Such activities threaten the safety of the JTF-Guantánamo staff, the detainees, and visiting counsel.

In furtherance of our investigation, we would like to know whether the contraband material, or any portion thereof, was provided by you, or anyone else on your legal team, or anyone associated with Reprieve. We are compelled to ask these questions in light of the coincidence that two detainees represented by counsel associated with Reprieve were found wearing the same contraband underwear.

Thank you as always for your cooperation and assistance,

Sincerely,

[Name redacted]
Commander, JAGC, US Navy
Staff Judge Advocate

*****

29th August, 2007

Re: The Issue of Underwear (“Discovery of ‘Contraband Clothing’ in the Cases of Shaker Aamer (ISN 239) and Mohammed el-Gharani (ISN 269)”)

Dear Cmdr. [redacted]:

Thank you very much for your letter dated August 12, 2007, which I received yesterday. In it, you discuss the fact that Mr. Aamer was apparently wearing ‘Under Armor briefs’ and some Speedo swimming trunks and that, by coincidence, Mr. el-Gharani was also sporting ‘Under Armor briefs’.

I will confess that I have never received such an extraordinary letter in my entire career. Knowing you as I do, I hope you understand that I do not attribute this allegation to you personally. Obviously, however, I take accusations that I may have committed a criminal act very seriously. In this case, I hope you understand how patently absurd it is, and how easily it could be disproven by the records in your possession. I also hope you understand my frustration at yet another unfounded accusation against lawyers who are simply trying to do their job –- a job that involves legal briefs, not the other sort.

Let me briefly respond: First, neither I, nor Mr. Katznelson, nor anyone else associated with us has had anything to do with smuggling ‘unmentionables’ in to these men, nor would we ever do so.

Second, the idea that we could smuggle in underwear is far-fetched. As you know, anything we take in is searched and there is a camera in the room when we visit the client. Does someone seriously suggest that Mr. Katznelson or I have been stripping off to deliver underwear to our clients?

Third, your own records prove that nobody associated with my office has seen Mr. Aamer for a full year. Thus, it is physically impossible for us to have delivered anything to him that recently surfaced on his person. Surely you do not suggest that in your maximum security prison, where Mr. Aamer has been held in solitary confinement almost continuously since September 24, 2005, and where he has been more closely monitored than virtually any prisoner on the Base, your staff have missed the fact that he has been wearing both Speedos and ‘Under Armor’ for 12 months?

Since your records independently establish that neither I nor Mr. Katznelson could not have been the one who delivered such undergarments to Mr. Aamer, this eliminates any ‘coincidence’ in the parallel underwear sported by Mr. el-Gharani. Your letter implies, however, that Mr. Katznelson might have something to do with Mr. el-Gharani’s underthings. Mr. Katznelson has not seen Mr. el-Gharani for four months. As you know, Mr. el-Gharani has been forced to strip naked in front of a number of military personnel on more than one occasion, and presumably someone would have noticed his apparel then.

Without bringing this up with me, it was therefore patently clear that my office had nothing to do with this question of lingerie. However, I am unwilling to allow the issue of underwear to drop there: It seems obvious that the same people delivered these items to both men, and it does not take Sherlock Holmes to figure out that members of your staff (either the military or the interrogators) did it. Getting to the bottom of this would help ensure that in future there is no shadow of suspicion cast on the lawyers who are simply trying to do their job, so I have done a little research to help you in your investigations.

I had never heard of ‘Under Armor briefs’ until you mentioned them, and my internet research has advanced my knowledge in two ways –- first, Under Armour apparently sports a ‘U’ in its name, which is significant only because it helps with the research.

Second, and rather more important, this line of underpants are very popular among the military. One article referred to the fact that “A specialty clothing maker is winning over soldiers and cashing in on war.” See here (emphasis in original). The article goes on to say:

In August [2005], a Baltimore-based clothier popular among military service members got in on the trend. * * * Founded in 1996, Under Armour makes a line of tops, pants, shorts, underwear and other “performance apparel” designed for a simple purpose: to keep you warm in the cold and cool in the heat.

This stuff is obviously good for the men and women stationed in the sweaty climate of Guantánamo, as we could all attest.

It would be worth checking whether this lingerie was purchased from the NEX there in GTMO, since the internet again leads one to suspect that the NEX would be purveyors of Under Armour:

Tom Byrne, Under Armour’s director of new business development, told Army Times that “The product has done very well in PXes across the country and in the Middle East, and we have seen an increasing demand month after month. There is clearly a need for a better alternative than the standard-issue cotton T-shirt.”

There must be other clues as to the provenance of these underpants. Perhaps you might check the label to see whether these are ‘tactical’ underwear, as this is apparently something Under Armour has created specially for the military.

Under Armour has a line of apparel called Tactical that’s modified for soldiers. It features the same styles as civilian tops and bottoms — LooseGear for all purpose conditions, HeatGear and ColdGear, meant for hot and cold weather, as well as a line for women. But Tactical items are offered in army brown, olive drab, midnight navy and traditional black and white. Also, the Tactical section of the Under Armour Web site features military models, not athletes. In one image, a soldier poised on one knee wears a LooseGear shirt, looking as if he’d just as soon take a hill as take off on a run. His muscular arms protrude from the tight, olive-colored fabric. He’s a picture of soldierliness. And he’s totally dry.

I don’t know the color of the underpants sported by Messrs. Aamer and el-Gharani, but that might give you a few tips. Indeed, I feel sure your staff would be able to give you better information on this than I could (though I have done my best) as this Under Armour stuff apparently provokes rave reviews from your colleagues:

Soldier testimonials are effusive. On Amazon.com, a convenient place to buy Under Armour online, a customer who calls himself Spc. Sublett says he’s stationed in Afghanistan. Although his identity cannot be verified, Sublett does note the Tactical line’s less apparent benefits. “Sometimes I have to go long times in hot weather without showers. Under Armour prevents some of the nasty side effects of these extreme conditions. All of my buddies out here use the same thing. They’re soldier-essential equipment. The only thing that would make them better is if the Army would issue them.”

I don’t mean to say that it is an open and shut case proving that your military provided the underwear, as I understand that other people use Under Armour. One group I noticed on the web were the amateur weight lifters, who seem confused as to whether Under Armour gave them a competitive advantage. See, e.g. here (“I was wondering what the rule on Under Armour is? I wear the briefs with my squat suit –- it makes it soooo much easier to get over my thighs. My first USAPL meet is coming up and I wanted to get that squared away before I show up –- Thanks, [name removed]”).

However, in the grand scheme of things, I would like to think we can all agree that the interrogators or military officers are more likely to have access to Messrs. Aamer and el-Gharani than the US Amateur Power Lifting Association.

On the issue of the Speedo swimming trunks, my research really does not help very much. I cannot imagine who would want to give my client Speedos, or why. Mr. Aamer is hardly in a position to go swimming, since the only available water is the toilet in his cell.

I should say that your letter brought to mind a sign in the changing room of a local swimming pool, which showed someone diving into a lavatory, with the caption, “We don’t swim in your toilet, so please don’t pee in our pool”. I presume that nobody thinks that Mr. Aamer wears Speedos while paddling in his privy.

Please assure me that you are satisfied that neither I nor my colleagues had anything to do with this. In light of the fact that you felt it necessary to question whether we had violated the rules, I look forward to hearing the conclusion of your investigation.

All the best.

Yours sincerely,

Clive A. Stafford Smith

Note: anyone in doubt that allegations against lawyers sometimes take on a graver hue should consult a recent article I wrote here. For more on the background to Shaker Aamer’s story, see here, and for information on Mohammed El-Gharani’s case, see here. In addition, both prisoners are discussed in my book, 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.