As Barack Obama and his transition team begin looking at ways to fulfill the President-elects pledge to close Guantánamo, Andy Worthington, author of The Guantánamo Files, recalls that Barack Obama also promised to reject the Military Commissions Act (the legislation that revived the system of terror trials conjured up in the office of Vice President Dick Cheney in November 2001), and provides 20 reasons why the military commissions should be scrapped.
1) David Hicks. The case of David Hicks, the so-called Australian Taliban, was the first scheduled trial following the revival of the commissions in the Military Commissions Act in the fall of 2006, after their first incarnation was struck down as illegal by the U.S. Supreme Court.
His case is enormously significant, as I explained in a recent article, The Dark Heart of the Guantánamo Trials, because it involved a plea bargain negotiated by Susan Crawford, the commissions newly appointed convening authority (the overseer of the trial system), which completely sidelined the prosecutors and in particular, the chief prosecutor, Col. Morris Davis, who later resigned, citing political interference in the process and a desire on the part of those directing the trials to allow the use of evidence obtained through torture. Crawford, a protge of Dick Cheney and a close friend of Cheney’s chief of staff, David Addington (the prime architect of the administrations post-9/11 flight from the law) negotiated the plea in March 2007 as a favor to Australian Premier John Howard, following a visit from Cheney. In exchange for admitting to providing material support for terrorism, and dropping well-documented claims that he was abused in U.S. custody, Hicks received a nine-month sentence, most of which was served in Australia.
2) Salim Hamdan. One of a pool of seven drivers for Osama bin Laden, the Yemeni a father with two young daughters was, like many of the prisoners, charged with conspiracy and providing material support for terrorism. After a two-week trial this summer, which was the commissions first real test, a military jury cleared him of the conspiracy charge and gave him a five-and-a-half year sentence on the lesser charge of supporting terrorism. The judge, Capt. Keith Allred, then allowed credit for time served, which means that Hamdans sentence will be completed by the end of the year.
Critics of the system refused to accept the trial as legitimate (in particular, because the gray area regarding the admissibility of coerced evidence was never adequately addressed), but were delighted with the result. The government, however, which had been pressing for a 30-year sentence, was livid. After noting that Hamdan could still be held as an enemy combatant after his sentence is over (a notion which would surely shame all but the most hardened dictators), the Defense Department resorted to claiming that Allred was not entitled to reduce Hamdan’s sentence for time served, and called for the jury to be reconvened. Allred dismissed these claims in a terse judgment on October 30, when, having read the filings and legal citations, as well as reviewing the sentencing hearing transcript (as the Wall Street Journal explained), he declared, simply, The prosecution motion to reconsider, reassemble, reinstruct and re-announce a sentence is denied.
3) Ali Hamza al-Bahlul. Al-Bahlul’s trial the second U.S. war crimes trial since the Second World War took place at Guantánamo in the week before the presidential election. Unlike Salim Hamdan’s trial, however, in which justice could at least be seen to be done (even if its was refracted through a dark mirror of unspoken abuse), al-Bahlul, a Yemeni accused of producing videos for al-Qaeda and serving as a bodyguard for Osama bin Laden, refused to mount a defense, and his lawyer, Maj. David Frakt, respected his clients wishes, and also refused to speak. As I pointed out in a recent article, Frakt was obliged to remain silent because of issues of compelled representation, which could lead to lawyers being punished in the real world outside Guantánamo for representing an unwilling client. As a result, al-Bahlul’s trial highlighted another grave problem with the commissions: If a prisoner wished to represent himself, this was acceptable, but if he boycotted the proceedings entirely, his trial proceeded as a one-sided show trial.
On November 3, the military jury gave al-Bahlul a life sentence, but without a case for the defense, the administration was allowed to sidestep the question of al-Bahlul’s alleged torture in U.S. custody, and was also allowed to ignore Maj. Frakts assertion, made before the trial began, that al-Bahlul was not an operational combatant, had no role in planning terrorist activities, and did not engage in terrorist activities. As I wrote at the time, The administration will crow that it has achieved a significant victory in the war on terror, but al-Bahlul’s guilt should have been confirmed in a federal courtroom, where he would not have been able to score a propaganda victory for al-Qaeda by being convicted in a one-sided trial.
4) Omar Khadr. A Canadian, Khadr was just 15 years old when he was captured after a firefight in Afghanistan in July 2002, and, as a juvenile, should therefore have been rehabilitated rather than punished, according to the Optional Protocol to the UN Convention on the Rights of the Child (on the involvement of children in armed conflict). He is accused of throwing a grenade that killed a U.S. soldier, although the disclosure of previously suppressed evidence in the last year indicates that another man threw the grenade. Because of obstruction by the prosecution, Khadr’s trial has been repeatedly delayed, and is now scheduled to begin on January 26, 2009, five days into the new U.S. administration.
At the time of writing, there are hopes that the Canadian government will be obliged to demand his return to Canada, after it was revealed, in a Canadian court, that the government knew about his torture in Guantánamo and that their repeated claims that they had received assurances from the U.S. authorities that he was being treated humanely were untrue. His civilian lawyer, Nate Whitling, told the court, I don’t want to use the word ‘lie,’ but it was a demonstratively false statement that was made to the Canadian public.
5) Mohamed Jawad. An Afghan, who was just 16 or 17 years old at the time of his capture, Jawad is accused of throwing a grenade that wounded two U.S. soldiers and an Afghan interpreter in December 2002, although he has always claimed that Afghan police obtained his confession through torture.
In the last month, Jawad’s case has threatened the legitimacy of the entire commission process, after his prosecutor, Lt. Col. Darrel Vandeveld, resigned. He explained that the system was designed to prevent the disclosure of evidence essential to the defense, and described how evidence proving that Jawad was a juvenile, that he was tricked into joining an insurgent group and was drugged before the attack, and that two other men had confessed to the crime, had been deliberately suppressed. Terrified that Vandeveld has more damaging revelations, the administration recently dropped the charges against five other prisoners Noor Uthman Muhammed, Ghassan al-Sharbi, Jabran al-Qahtani, Sufyian Barhoumi and Binyam Mohamed for whom Vandeveld was the prosecutor. The government added that it intended to refile charges against the five men in November, but did not explain how it intended to silence Vandeveld indefinitely.
All five were reportedly connected with Abu Zubaydah, a training camp facilitator who is regarded by the U.S. administration as a senior al-Qaeda operative, even though the FBI regards him only as a minor logistician with a personality disorder. The government has not explained why Zubaydah has not been charged, but in May it charged Muhammed, a Sudanese prisoner, with serving as the deputy emir and a weapons instructor at the Khaldan training camp in Afghanistan, even though Muhammed has insisted that Khaldan had nothing to do with either al-Qaeda or the Taliban. In June, al-Sharbi and al-Qahtani (both Saudis) and Barhoumi (an Algerian) were charged with various plots involving explosives, and Binyam Mohamed, a British resident whose lawyers have been engaged in a transatlantic struggle to secure evidence relating to the two years he spent being tortured in Morocco and in a secret CIA prison in Afghanistan, was charged with plotting to detonate a dirty bomb in a U.S. city (the same non-existent plot that was used to hold U.S. citizen Jose Padilla for three and a half years as an enemy combatant on the U.S. mainland).
At the time of writing, the judge in Jawad’s case, Army Col. Stephen Henley, moved one step closer to dismissing the case by ruling that his confession, obtained in Afghan custody, was inadmissible, because it had been extracted through the use of torture (confirming Jawad’s repeated claims). As the Miami Herald reported, Henley found that there was reason to believe Jawad was under the influence of drugs at the time of his capture and forced confession, and also accepted the accused’s account of how he was threatened, while armed senior Afghan officials allied with U.S. forces watched his interrogation. He stated that he believed Jawads account of an interrogator telling him, You will be killed if you do not confess to the grenade attack. We will arrest your family and kill them if you do not confess. He also made a point of stating that he was accepting Jawad’s account because the government had failed to provide timely disclosure of evidence for his trial, which is scheduled to begin on January 5, 2009.
Noting that Henley was explicitly rejecting the administrations notorious attempts to redefine torture, Maj. David Frakt, Jawad’s tenacious defense attorney, congratulated the judge for adopting a traditional legal definition of torture, rather than making one up, and Lt. Col. Vandeveld also spoke out, telling the Associated Press that Jawad’s confession to Afghan officials was among the most important evidence for his upcoming war crimes trial, and adding, To me, the case is not only eviscerated, it is now impossible to prosecute with any credibility.
6) Ahmed al-Darbi. A Saudi, who is accused of plotting attacks on shipping for al-Qaeda, al-Darbi was kidnapped in Azerbaijan and rendered to Guantánamo in 2002, via the U.S. prison at Bagram airbase, where he has claimed that he was severely abused. At his arraignment in April, he refused to take part in the commissions, prompting his military-appointed lawyer, Army Lt. Col. Bryan Broyles, to comment that, in order to comply with established legal rules that prevent lawyers from representing clients who refuse their services (as in Ali Hamza al-Bahlul’s case), his role in al-Darbi’s forthcoming trial was now equivalent to that of a potted plant.
At a short pre-trial hearing in September, Broyles announced his resignation from the case, reiterating his complaints about compelled representation, and explaining that al-Darbi never came to trust him because the attorney-client relationship is close to impossible to establish in a system in which a lawyer is imposed on a prisoner, and that it was compounded by the fact that counsel wear the same uniform as [the prisoner's] interrogators. As a parting shot, Broyles was asked what he thought about the chief prosecutors claim that al-Darbi’s trial would be completed before the new administration takes office. Its not about timing, he said, its about doing justice. While a new defense team was being arranged, al-Darbi was represented by his civilian lawyer, Ramzi Kassem.
7) Ibrahim al-Qosi. A Sudanese, who is accused of being a bodyguard and a driver for Osama bin Laden, and a quartermaster for al-Qaeda, al-Qosi was previously charged in the commissions first aborted incarnation. In April, he also boycotted his pre-trial hearing, telling the judge, I do not recognize the justice or the lawfulness of this court, and adding, What is happening in your courts is in fact a sham, which aims solely that the cases move at the pace of a turtle in order to gain some time to keep us in these boxes without any human or legal rights. To the best of my knowledge, no date has yet been set for al-Qosis trial, even though it was one of the cases that the chief prosecutor, Col. Lawrence Morris, wanted to see completed before the new administration takes office in January 2009.
8) Khalid Sheikh Mohammed (KSM). Reportedly the third most important figure in al-Qaeda, after Osama bin Laden and Ayman al-Zawahiri, KSM, who was captured in Pakistan in March 2003, and the four men described below are among the 14 high-value detainees transferred to Guantánamo in September 2006 after being held for years in secret prisons run by the CIA. KSM confessed in his military tribunal in Guantánamo last year (convened to confirm that he was an enemy combatant who could be tried by military commission) that he was responsible for the 9/11 operation, from A to Z. He is one of three high-value detainees whom CIA director Michael Hayden admitted had been subjected to waterboarding (a torture technique that involves controlled drowning) while held in CIA custody.
KSM and his co-defendants were charged in February, and arraigned in June. In September, at a pre-trial hearing, KSM dominated the proceedings. Taking advantage of the fact that the Military Commissions Act allows prisoners to represent themselves (but only if they are willing to mount a defense, as revealed in the case of Ali Hamza al-Bahlul), he cheekily quizzed the judge, Marine Col. Ralph Kohlmann, about his beliefs, as part of the voir dire process (which allows lawyers to question the judges impartiality), and enjoyed a media platform which, ironically, would not have been available to him if he was being prosecuted in a courtroom on the U.S. mainland.
9) Ramzi bin al-Shibh. A Yemeni, and reportedly a friend of the 9/11 hijackers, who helped coordinate the attacks with KSM after he was unable to enter the United States to train as a pilot for the operation, bin al-Shibh was captured in Pakistan in September 2002. After being held in secret CIA custody for four years, he refused to take part in his tribunal at Guantnamo, and only finally spoke at the pre-trial hearing in September. His lawyers, whom he is seeking to dismiss, are engaged in a legal tussle to secure an independent psychiatric evaluation of bin al-Shibh, who is receiving psychotropic drugs that are typically used for schizophrenia. At the hearing in September, Col. Kohlmann refused to allow the lawyers to visit Camp 7, the secret prison within Guantnamo where the high-value detainees are held, but on October 27 he relented, ruling that the lawyers should be allowed to visit the block to inspect the defendant’s conditions of confinement as part of an inquiry into his mental health.
10) Mustafa al-Hawsawi. A Saudi, who was captured with KSM, al-Hawsawi is accused of sourcing funding for the 9/11 attacks from Dubai. In his tribunal at Guantnamo, he admitted providing support for jihadists, including transferring money for some of the 9/11 hijackers, although he denied that he was a member of al-Qaeda. At the arraignment in June, it appeared that KSM and some of al-Hawsawis other co-defendants put pressure on him to refuse the services of his lawyer, Army Maj. Jon Jackson, but at the pre-trial hearing in September Jackson was still arguing his clients corner. Explaining that his client doesnt understand about a quarter of the court proceedings because of incomprehensible interpretation, he complained that the government had opposed a request for transcripts of each days proceedings to be made available in English and Arabic so that they can go over each days events with their clients and make corrections for the record, adding, I could not believe my government would not provide transcripts in the native language of the accused that it wants to put to death.
11) Ali Abdul Aziz Ali. Also known as Ammar al-Baluchi, he is a nephew of KSM, and was captured in Pakistan with Walid bin Attash (see below) in April 2003. In his tribunal at Guantnamo last year, he admitted transferring money on behalf of some of the 9/11 hijackers, but insisted that he was a legitimate businessman, who regularly transferred money for Arabs, without knowing what it would be used for. At the arraignment and the pre-trial hearing, he has spoken little, but has demonstrated a firm command of English, and a desire to highlight the inadequacies of the system and his torture at the hands of U.S. forces. At the arraignment, he responded to Col. Kohlmanns assurance of his right to legal assistance by stating, Everything that has happened here is unfair and unjust, and added, referring specifically to the offer of free legal representation, Since the first time I was arrested, I might have appreciated that. The government is talking about lawyers free of charge. The government also tortured me free of charge all these years.
12) Walid bin Attash. A Saudi, who lost a leg in Afghanistan before 9/11, bin Attash stated in his tribunal at Guantnamo that he was the link between Osama bin Laden and the Nairobi cell during al-Qaedas African embassy bombings in 1998, and admitted that he played a major part in the bombing of the USS Cole in 2000, explaining that he put together the plan for the operation for a year and a half, and that he bought the explosives and the boat, and recruited the bombers. Like KSM and Ali Abdul Aziz Ali, he has chosen to represent himself, although he is able to take advantage of the assistance of attorneys. In early October, Col. Kohlmann ruled that the men should be provided with enough battery power to use their prison camp laptops [which contain the governments unclassified evidence against them] 12 hours a day, but stopped short of allowing them to surf the Internet.
Initially charged with the five men above, Mohammed al-Qahtani, a Saudi who was reportedly intended to be the 2oth hijacker for the 9/11 attacks, but was refused entry into the United States by immigration officials, was tortured for several months at Guantnamo in late 2002 and early 2003. The charges against him were dropped in May, when the others were formally charged, either because evidence of his torture is admissible (whereas that obtained in secret prisons by the CIA is not), or because of a pronounced deterioration in his mental health since he was first charged, which led to a number of suicide attempts. It is unlikely that he will be charged again.
13) Ahmed Khalfan Ghailani. A Tanzanian, and one of the 14 high-value detainees transferred to Guantnamo from secret CIA prisons in September 2006, Ghailani, who was captured after a gun battle in Gujrat, Pakistan in July 2004, is accused of being a coordinator of the African embassy bombings, and of running a document-forging operation for al-Qaeda in Afghanistan. In his tribunal, he described himself as a peripheral character in the African embassy bombings, who was duped by others around him, although he admitted forging documents for al-Qaeda in Afghanistan.
On October 22, Ghailani was formally arraigned. Judy Rabinovitz, an observer for the American Civil Liberties Union, reported that the occasion was not particularly enlightening, and that the judge essentially followed a script, advising Ghailani that he had a right to obtain civilian counsel in addition to his assigned military counsel, and repeatedly asking [him] if he understood what was going on. A trial date is scheduled for February 2009. As Rabinovitz also noted, Ghailani was indicted in the United States ten years ago for the same crimes with which he is now being charged, and several of his co-defendants in the federal proceedings have already been convicted and sentenced, whereas Ghailani faces a dubious trial following years of mistreatment in secret CIA custody.
14) Mohammed Kamin. An Afghan seized in 2003, Kamins case is one of the more farcical cases put forward for trial. He is not charged with harming, let alone killing U.S. forces, and is, instead, accused of receiving training at an al-Qaeda training camp. For his arraignment in May, he refused to leave his cell, and was dragged to the court by guards, arriving with bruises, cuts and a swollen eye. The judge, Air Force Col. W. Thomas Cumbie, explained that he was handcuffed and shackled because he had attempted to spit on and bite one of the guards on his way to the courtroom. Kamin then refused to be represented by a U.S. military lawyer, and called the charges a lie and a forgery.
On October 23, a pre-trial hearing took place, although Kamin was not present. Judy Rabinovitz noted, The officer who had been responsible for bringing him to court said that when she went to Kamin’s cell to notify him of the hearing, he ripped up the notice, began kicking and hitting the cell door and stated that he was innocent and it was President Bush who should be on trial. She added that a prosecution motion to compel Kamin’s presence by forcibly extracting him from his cell was denied after defense lawyers objected on the grounds that it would put Kamin and others at risk, although it was clear that the motion was denied in particular because the judge did not want a repeat of Mays proceedings.
The rest of the hearing was farcical. Rabinovitz explained that a mental status evaluation had found that Kamin was competent to participate in the proceedings, even though the two military doctors had never met or observed the defendant, and one, Col. Elspeth Cameron Ritchie, has been criticized for assisting in the interrogation process. As with other cases including that of Omar Khadr the defense sought to appoint an independent psychiatric expert, a proposal which was vigorously opposed by the prosecution, and also raised the issue of obstruction, which was timely, in the wake of Lt. Col. Vandeveld’s resignation. Although they accused the intelligence agencies of a systemic failure to cooperate with their requests for discovery, and asked the judge to dismiss the case, as a sanction for the government’s failure to comply with the discovery process in a timely manner, but also as a deterrent to the intelligence agencies that continue to drag their feet, jeopardizing the integrity of the process, the judge refused.
15) Mohammed Hashim. Another minor Afghan insurgent (at best), Hashim was charged in June with spying for al-Qaeda in Afghanistan and conducting a rocket attack on U.S. forces. As with the case of Mohammed Kamin, it is difficult to work out how the administration construes these charges as war crimes, and in Hashim’s case this is complicated by the fact that his publicly available testimony which is sprinkled with implausible references to 9/11, Osama bin Laden and links between al-Qaeda and Saddam Hussein suggests that he either has mental health problems, or has dreamt up the biggest lies possible to secure more favorable treatment. Despite this, Susan Crawford approved the charges against Hashim on October 21.
16) Abdul Rahim al-Nashiri. A Saudi, and another of the 14 high-value detainees transferred to Guantánamo from secret CIA prisons in September 2006, al-Nashiri, who was seized in the United Arab Emirates in November 2002, was charged at the start of July for his alleged role in the attacks on the USS The Sullivans and the USS Cole in 2000, and the French tanker Limburg in 2002. What will undoubtedly complicate his case, should it come to trial, is the fact that he is one of three high-value detainees whom CIA director Michael Hayden admitted had been subjected to waterboarding in secret CIA custody, and in his tribunal at Guantánamo last year he made a point of mentioning that he had made up false confessions after being tortured. From the time I was arrested five years ago, he said, they have been torturing me. It happened during interviews. One time they tortured me one way, and another time they tortured me in a different way. I just said those things to make the people happy. They were very happy when I told them those things.
17) Abdul Ghani. Yet another minor Afghan insurgent, Ghani was charged at the end of July with firing rockets at U.S. forces, planting land mines and other explosive devices on more than one occasion for use against U.S. and coalition forces, attacking Afghan soldiers, and accept[ing] monetary payments, including payment from al-Qaeda and others known and unknown, to commit attacks on U.S. forces and bases. As I wrote at the time, Apart from the inclusion of the magic words al-Qaeda, there was nothing in Abdul Ghanis charge sheet to indicate that he should find himself in the same trial system as those accused of involvement in the 9/11 attacks, the African embassy bombings of 1998 or the bombing of the USS Cole in 2000, or even, in fact, that he should have been sent to Guantánamo at all.
18) Obaidullah. If anything, the case against Obaidullah, another Afghan, is even less explicable. In September, he was charged with hiding explosives, which he knew or intended would be used in preparation for and in carrying out a terrorist attack. The charges were astonishing, because he was not actually accused of attacking U.S. forces, and, according to the transcripts of his tribunal and review boards at Guantnamo, he made it clear that he had come up with false confessions while being threatened by U.S. forces in a prison at the airport in Khost, in eastern Afghanistan.
19) Faiz al-Kandari. The first of two Kuwaitis to be put forward for trial, al-Kandari was charged with conspiracy and providing material support for terrorism on October 22. Seized during the Tora Bora campaign in December 2001, when members of al-Qaeda and the Taliban were holed up in the Afghan mountains near Pakistan, and numerous other civilians were attempting to flee the chaos of war, al-Kandari has always maintained that he traveled to Afghanistan to provide humanitarian aid, but is accused or providing instruction to al-Qaeda members and trainees at the al-Farouq camp (the main training camp for Arabs), serving as an adviser to Osama bin Laden, and producing recruitment audio and video tapes which encouraged membership in al-Qaeda and participation in jihad, even though he only arrived in Afghanistan a month before the 9/11 attacks.
20) Fouad al-Rabia. Also charged with conspiracy and providing material support for terrorism, al-Rabia, a businessman and a father of four who was 42 years old when he was seized is accused of raising funds for al-Qaeda, and being in charge of an al-Qaeda supply depot at Tora Bora, where he distributed supplies to al-Qaeda fighters. He has never denied meeting Osama bin Laden, but has explained that, as a good Muslim who undertook humanitarian aid missions every year, he was introduced to bin Laden in 2001 while visiting Afghanistan to research the opportunities for proving aid to the region.
He has also explained that he only ended up in Tora Bora as part of a vast exodus of people civilians like himself, as well as members of al-Qaeda and the Taliban who were fleeing the chaos of Afghanistan after the U.S.-led invasion of October 2001, but had conceded that a senior figure in al-Qaeda forced him to look after the issue counter, where supplies food and blankets, rather then weapons were being handed out, in exchange for arranging for him to leave the mountains, when he was promptly sold by local villagers to the Northern Alliance.
In conjunction with the continuing setbacks described above, the one-sided show trial of Ali Hamza al-Bahlul, investigations into the alleged misconduct of the commissions former legal adviser (described here), and the continuing threat to the credibility of the system that is posed by Lt. Col. Vandeveld, the latest charges do nothing to suggest that the life of the military commissions should be extended beyond January 20, 2009.
President Obama should press Congress to repeal the Military Commissions Act, as he promised, and should rapidly establish an objective and intelligent body capable of reviewing the cases of those facing (or scheduled to face) trial by military commission, stripping out the juveniles and insignificant Afghan insurgents (who should be freed) from those regarded as genuinely dangerous terrorists involved with al-Qaeda and/or the 9/11 attacks, who should be moved to the U.S. mainland to face trials in federal courts.
After the crimes of the Bush years, no solution is perfect (and these trials will inevitably involve a messy compromise over the use of torture), but I can see no other practical solution. Talk of moving prisoners to the federal court system has already provoked a rash of commentators to step forward and talk about the need for new legislation creating another new trial system or providing a mandate for special preventive detention for terror suspects, but all such innovations should be resisted. I can only wonder how it is that those proposing such ideas have managed to learn nothing at all from the abuse of the Constitution over the last seven years.