Last Thursday, February 16, Umar Farouk Abdulmutallab, the so-called underwear bomber, received a life sentence in a courtroom in Detroit. Abdulmutallab, a Nigerian, had tried and failed to blow up a plane bound for Detroit on Christmas Day 2009, receiving serious burns when the bomb failed to detonate.
After he was apprehended, he was read his Miranda rights and interrogated noncoercively by the FBI, but that was not acceptable to supporters of torture, who proceeded to demonstrate that a new phase of fear-mongering and paranoia was opening up in what should, by then, have been the dying days of the “war on terror.”
In the new spirit of hysteria, the discovery that Abdulmutallab had been recruited for his failed mission in Yemen led to a chorus of demands that no more Guantánamo prisoners should be released to Yemen — from Sen. Joe Lieberman (I-Conn.), Rep. Peter Hoekstra (R-Mich.), Rep. Peter King (R-N.Y.), and even Bennie Thompson (D-Miss.), the chairman of the House Homeland Security Committee, who told Politico, “In terms of sending more of them to return to Yemen, it would be a bit of a reach. I’d, at a minimum, say that whatever we were about to do we’d at least have to scrub it again from top to bottom.”
In response to the hysteria, Barack Obama issued a moratorium on releasing any more Yemenis from Guantánamo, explaining at a press briefing on January 5, 2010, just 11 days after the failed attack, “I’ve spoken to the Attorney General and we’ve agreed that we will not be transferring additional detainees back to Yemen at this time.”
With one exception, that ban remains in place, with no sign of when, if ever, it will be lifted. That means that the Yemenis cleared for release by the president ’s own interagency Guantánamo Review Task Force — 58 men in total — may be held forever, even though some of them were first cleared under George W. Bush in 2004, and even though holding men cleared for release makes a mockery of any notion of justice. It demonstrates only that, in its overreaction to the events of Christmas Day 2009, the U.S. government is prepared to continue holding men on the basis of what can only be described as “guilt by nationality.”
It was alarming that six days after the failed attack, Rasmussen found that 58 percent of Americans believed that Abdulmutallab should have been subjected to waterboarding, even though, in March 2009, Attorney General Eric Holder had correctly stated, “Waterboarding is torture. My Justice Department will not justify it, will not rationalize it, and will not condone it.” Then, in the Washington Post, another critic of Abdulmutallab’s treatment, Charles Krauthammer, decided to denounce Holder for failing to send Abdulmutallab to Guantánamo.
Holder fought back. “What we did is totally consistent with what has happened in every similar case” since 9/11, he told Jane Mayer of the New Yorker in February 2010. He added, “There’s a desire to ignore the facts to try to score political points. It’s a little shocking.” Mayer also stated, “Without exception, he noted, every previous terrorist suspect apprehended inside the country had been handled as a civilian criminal.” A senior national security official in the White House supported Holder’s position, explaining, “It’s a fantasy! Under what alternative legal system can Special Operations Forces fly into Detroit and take someone away without court oversight?”
Kate Martin, the director of the Center for National Security Studies, in Washington, D.C., added that the proposal for the military to “simply grab suspects inside the U.S. and hold them without charge or a hearing” was unacceptable because it “violates the Constitution, which extends to everyone inside the U.S. You can’t be seized without probable cause. You have the right to due process and to a trial by a jury of your peers — which a military commission is not.”
Mayer noted, appropriately, that confusion might have been engendered by Bush’s treatment of U.S. citizen Jose Padilla and the legal U.S. resident Ali al-Marri. Both were “arrested in the U.S. by law-enforcement officials, and indicted on criminal charges,” but were then declared to be “enemy combatants” by Bush, and held and tortured in military custody. After pointing out that “[neither] suspect provided useful intelligence,” Mayer explained that, after the administration’s position was challenged in the courts, Bush, who was “not willing to risk a Supreme Court defeat, returned the suspects to the civilian system,” where they were eventually tried, convicted, and sentenced.
It was alarming that the paranoia that began with the capture of Abdulmutallab led directly to the most distressing provisions in the recent National Defense Authorization Act, in which lawmakers made it obligatory for all terror suspects thought to be associated with al-Qaeda to be held in mandatory military custody, potentially for life, without charge or trial.
Obama declared his unwillingness to follow those provisions (although he signed the NDAA into law), and it is uncertain whether any president in the future would succeed in holding U.S. citizens or residents in military custody without prompting the Supreme Court to rule against it (as was Bush’s fear regarding Jose Padilla and Ali al-Marri). But it is now the law, and the passage of the NDAA was a dreadful day for justice in America.
The successful conviction of Umar Farouk Abdulmutallab should have demonstrated how disproportionate and unjust the many responses to his capture had been — the support for Guantánamo, the support for waterboarding, the enshrining of mandatory military custody for terror suspects in U.S. law. It is disappointing, but not unexpected, that this has barely been mentioned, if at all, since the sentence was passed.
There is, however, another response to Abdulmutallab’s sentencing that also should not be ignored, and that is how it contrasts with the ongoing developments in the military commissions at Guantánamo. That alternative trial system was first dragged from the history books by Dick Cheney in November 2001. It is now in its third incarnation, after Congress ruled Cheney’s version illegal in 2006, and Obama then decided to tinker with Congress’s replacement in 2009, rather than consigning it to the scrapheap, as those with expertise of legal issues and the military advised him to do.
That was a huge mistake, as it allowed opponents of federal court trials to successfully challenge the planned federal court trial of Khalid Sheikh Mohammed and four other men accused of involvement with the 9/11 attacks (on which, coincidentally, Eric Holder had staked his credibility). Of course, the resurrection of the commissions also fed into the hysteria about Umar Farouk Abdulmutallab.
Since reviving the commissions, the Obama administration has secured three successful results — but only by negotiating plea deals. Two were with Sudanese prisoners, Ibrahim al-Qosi (a cook in Afghanistan), and Noor Uthman Muhammed (a training-camp instructor). A third was with Omar Khadr, the Canadian citizen and former child prisoner whose conviction was a disgraceful travesty of justice and a betrayal of any notion that either the United States or Canada is committed to the rights of child soldiers.
Since then, there have been fumbling steps towards the prosecution of Abd al-Rahim al-Nashiri, a Saudi held for more than nine years, including four years in secret CIA prisons, where, early on, he was waterboarded. And last week, military prosecutors announced that they were charging Majid Khan, another of the 14 “high-value detainees” transferred to Guantánamo from secret CIA prisons in September 2006. Khan, a Pakistani national who is now 31 years old, lived as a child in the suburbs of Baltimore, where he graduated from high school in 1999, and then spent some time working at gas stations owned by his family. However, after returning to Pakistan, he is said to have joined al-Qaeda, working with Khalid Sheikh Mohammed, and is accused of plotting to blow up underground fuel tanks in the United States, plotting to assassinate President Musharraf, and delivering $50,000 to an al-Qaeda group in Indonesia.
Whether any of that is true or not remains to be seen — as does the possibility that Khan is being prepared for a plea deal, which will involve his being a witness against Khalid Sheikh Mohammed. Shamefully little is known about him because every single word exchanged between the 14 “high-value detainees” and their lawyers over the last five years remains classified, so that their attorneys have been unable to provide any information about them to the public.
What is clear, however, is that there are reasons to believe that Majid Khan was subjected to torture after his capture in Pakistan in March 2003, and that therefore the case against him may not be reliable. As I explained in an article in July 2007, drawing on the military review process (the Combatant Status Review Tribunal) that Khan undertook at Guantánamo in 2007, his father, Ali, wrote to the tribunal, and this is how I described his statements:
“If you think that he did something wrong, show me the evidence. Charge him with a crime and give him a fair trial in a real court. This tribunal is not a real court…. It is only for show and the outcome has probably already been decided.” Crucially, he added, “Anything that he may have confessed to, or that other prisoners may have said about him, should also be considered with suspicion because these statements were probably tortured or coerced out of them. Under these circumstances, how could anyone believe what the government says about my son?”
In passages, which, remarkably, were not redacted, Ali Khan then described Majid’s torture at the hands of U.S. and Pakistani agents, explaining that “after eight days of interrogation by U.S. and Pakistani agents,” his son Mohammed was allowed to see Majid, who “looked terrible and very, very tired,” and proceeded to explain to his brother that “the Americans tortured him for eight hours at a time, tying him tightly in stressful positions in a small chair until his hands, feet and mind went numb,” that they “re-tied him in the chair every hour, tightening the bonds on his hands and feet each time so that it was more painful,” and that they “beat him repeatedly,” subjected him to sleep deprivation, and, when not being interrogated, held him in a small, mosquito-infested cell, which was “totally dark, and too small for him to lie down in or sit in with his legs stretched out.”
In Ali’s testimony, the most devastating statement was the following: “This torture only stopped when Majid agreed to sign a statement that he was not even allowed to read,” although he also noted that the torture resumed when he “was unable to identify certain streets and neighborhoods in Karachi that he did not know.”…
That is disturbing, but not unexpected, of course, because all of the “high-value detainees” were subjected to torture. What rings out, however, when comparing Majid Khan’s case to that of Umar Farouk Abdulmutallab, is Khan’s father’s plea for “a fair trial in a real court,” which is still not something that can be remotely guaranteed, nearly nine years after Majid Khan’s capture, and five years since that plea was made by his father.
In contrast, Umar Farouk Abdulmutallab, who was not tortured or abused, was sentenced to life in prison a little more than two years after his capture. Those who support Guantánamo, torture, and the mandatory military custody of terror suspects ought to learn from this that their desires are not only unjust, but also counterproductive.