{"id":5075,"date":"2009-01-10T15:51:38","date_gmt":"2009-01-10T14:51:38","guid":{"rendered":"http:\/\/rinf.com\/alt-news\/?p=5075"},"modified":"2009-01-10T15:51:38","modified_gmt":"2009-01-10T14:51:38","slug":"the-dying-days-of-the-guantanamo-trials","status":"publish","type":"post","link":"http:\/\/rinf.com\/alt-news\/contributions\/the-dying-days-of-the-guantanamo-trials\/","title":{"rendered":"The Dying Days of the Guant\u00c3\u00a1namo Trials"},"content":{"rendered":"

With less than two weeks until the Bush administration leaves office, Andy Worthington, author of <\/em>The Guant\u00c3\u00a1namo Files: The Stories of the 774 Detainees in America\u2019s Illegal Prison<\/em><\/a>, reports on developments \u2013 or the lack of them \u2013 during the last month in the Military Commissions, the much-criticized trial system for \u201cterror suspects\u201d that was conceived by Vice President Dick Cheney and his close advisers in the wake of the 9\/11 attacks.<\/em><\/p>\n

By Andy Worthington<\/a>\u00a0|<\/p>\n

Since the last blowout<\/a> at Guant\u00c3\u00a1namo on December 8, when dozens of reporters and relatives of victims of the 9\/11 attacks watched as Khalid Sheikh Mohammed (KSM) and his alleged co-conspirators<\/a> tried \u2013 and failed \u2013 to plead guilty so that they could die martyr\u2019s deaths, few observers have witnessed the Commissions go through the motions in the Bush administration\u2019s last days, like a preprogrammed machine, unaware that major changes are afoot, or, less charitably, like a decapitated chicken on its last round of the farmyard.<\/p>\n

\u201cWe serve the sitting president and will continue to do so until the president-elect is inaugurated, at which time we will implement whatever policies are enacted by the next president,\u201d Navy Cmdr. J.D. Gordon, a Pentagon spokesman, explained<\/a> last month.<\/p>\n

An ignoble history<\/strong><\/p>\n

The Military Commissions have rarely attracted the media attention that a novel, flagship program to try \u201cterror suspects\u201d should have attracted, even though the administration has persistently tried to sell Guant\u00c3\u00a1namo as a place full of the world\u2019s toughest terrorists, rather than what it really is<\/a>: a place where a few dozen members of a small, fanatical and deeply secretive terror network have been vastly outnumbered by Taliban foot soldiers, recruited to fight an inter-Muslim civil war in Afghanistan that began long before 9\/11 and had no connection to al-Qaeda or the 9\/11 attacks, or completely innocent men, sold for bounty payments by the United States\u2019 opportunistic allies in Afghanistan and Pakistan.<\/p>\n

\"\"The rot was there from the beginning, as military defense lawyers, appointed by the government, realized to their horror<\/a> that the Military Commissions were designed to secure convictions and to facilitate the use of evidence obtained through torture. The entire system should have died in June 2006, when the Supreme Court ruled it illegal, but when Congress revived the monster that fall, its new-found legitimacy was soon punctured when the first prisoner to face a trial, the Australian David Hicks<\/a>, was repatriated in May 2007 following a plea bargain negotiated by Vice President Dick Cheney<\/a> as a political favor to his ailing ally, Prime Minister John Howard.<\/p>\n

Such cynicism has always been readily apparent when it comes to releasing prisoners from the general population, but for the first trial by Military Commission to be undermined in such a manner appeared to take hypocrisy to a new level, even though a trial, had it proceeded, would have been hard-pushed to present Hicks as a terrorist. Hyperbole of this kind was possible in the early days of the \u201cWar on Terror,\u201d when the \u201cAmerican Taliban\u201d John Walker Lindh<\/a> received a 20-year sentence, but as John Howard found to his chagrin, by 2007 the public was less willing to indulge such hyperbole. As I discovered while writing The Guant\u00c3\u00a1namo Files<\/em>, far from being caught on the battlefield, Hicks was actually betrayed by an Afghan van driver as he fled northern Afghanistan, trying in vain to hide his blue eyes and blond hair, and was then brutalized mercilessly in US hands.<\/p>\n

In the last seven months, as the Bush administration sought to construct a \u201cWar on Terror\u201d legacy that would not consist solely of hubris and ridicule, the pressure on the Commissions to press ahead with trials intensified. To a small degree, the ploy was successful. The arraignment and pre-trial hearings of KSM et al. attracted widespread attention in June<\/a>, September<\/a> and December, and the trial of Salim Hamdan<\/a>, a driver for Osama bin Laden, also drew a flurry of interest in the summer \u2013 although this was largely mitigated when Hamdan received an extraordinarily lenient sentence<\/a> (freeing him<\/a> by the end of the year), which effectively destroyed Guant\u00c3\u00a1namo\u2019s rationale.<\/p>\n

There was further bad news<\/a> in September, when, as a result of his crusading pro-prosecution bias, the Commissions\u2019 legal adviser, Brig. Gen. Thomas Hartmann, was sacked after being disqualified by three military judges, and Lt. Col. Darrel Vandeveld, a prosecutor and a previously staunch supporter of the regime, resigned after seeking advice from a Jesuit peace activist, and left cursing the administration for its deliberate suppression of evidence vital to the defense in the case of the Afghan prisoner Mohamed Jawad<\/a>. Although Jawad was accused of a grenade attack on a jeep containing US soldiers, it transpired that he was a juvenile when seized, was drugged at the time of the attack by the insurgents who had tricked him into being recruited, and had been tortured in Afghan custody until he confessed. One of Vandeveld\u2019s discoveries was that two other men, neither of whom is held at Guant\u00c3\u00a1namo, had also confessed to the attack.<\/p>\n

However, while these stories were widely reported \u2013 and there was also sporadic interest in the baleful saga of the Canadian Omar Khadr<\/a>, the other juvenile facing a trial by Military Commission \u2013 the media as a whole (with the valiant exceptions of the Miami Herald<\/em>\u2019s Carol Rosenberg, the Toronto Star<\/em>\u2019s Michelle Shephard and Jane Sutton of Reuters) showed little appetite for covering the cases of the other 16 prisoners<\/a> put forward for trial. This ability to find almost anything else more newsworthy was aptly demonstrated on the eve of the Presidential election when a prisoner named Ali Hamza al-Bahlul<\/a> received a life sentence \u2013 ostensibly to be served in Guant\u00c3\u00a1namo in total isolation \u2013 after a one-sided show trial in which, under the Commissions\u2019 deeply flawed rules, he had been allowed to mount no defense whatsoever.<\/p>\n

Derailing the cases of Mohamed Jawad and Omar Khadr<\/strong><\/p>\n

Just two days after the last appearance of the KSM circus, when most of the reporters had gone home, Army Col. Stephen Henley, the judge in Mohamed Jawad\u2019s case, \u201cindefinitely delayed\u201d Jawad\u2019s trial, as Jane Sutton<\/a> explained. The trial had been scheduled to begin on January 5, but Henley gave the prosecution an unspecified amount of time to work out how to appeal his earlier decision to exclude the confession obtained by the Afghan authorities shortly after Jawad\u2019s capture in Kabul in December 2002, because it was \u201cobtained through death threats that constituted torture,\u201d and another confession<\/a>, which he made to US interrogators the following day, because that too was the \u201cfruit of that torture.\u201d Whether the prosecution can come up with any further evidence is doubtful. As Lt. Col. Vandeveld explained in November, Jawad\u2019s confession to Afghan officials was \u201camong the most important evidence for his upcoming war crimes trial.\u201d Vandeveld added, \u201cTo me, the case is not only eviscerated, it is now impossible to prosecute with any credibility.\u201d<\/p>\n

\"\"Two days later, on December 12, there was a further shock in the case of Omar Khadr. Although the US government has always claimed that Khadr was responsible for throwing a grenade that killed US Sgt. Christopher Speer during the firefight that led to Khadr\u2019s capture in Afghanistan in July 2002, it was revealed in November 2007 \u2013 just 36 hours before Khadr\u2019s trial was supposed to begin \u2013 that a previously undisclosed \u201cUS government employee,\u201d who was an eye-witness to the gunfight, had \u201cpotentially exculpatory evidence\u201d proving that another man was alive at the time, and that this other man may have thrown the grenade.<\/p>\n

At another pre-trial hearing<\/a> in March last year, Khadr\u2019s military defense lawyer, Lt. Cmdr. William Kuebler, revealed that the report of the circumstances that led to Khadr\u2019s capture, written by an officer identified only as \u201cLt. Col. W.,\u201d had been altered after the event to implicate Khadr, and on December 12 another witness, identified only as \u201cSoldier No. 2,\u201d produced further evidence indicating that Khadr could not have thrown the grenade, explaining, as Michelle Shephard<\/a> described it, that the teenager \u201cwas buried under rubble from a collapsed roof before he was captured.\u201d<\/p>\n

In a motion submitted by Khadr\u2019s lawyers, the soldier explained that he \u201cthought he was standing on a \u2018trap door\u2019 because the ground did not seem solid.\u201d He then \u201cbent down to move the brush away to see what was beneath him and discovered that he was standing on a person; and that Mr. Khadr appeared to be \u2018acting dead.\u2019\u201d Speaking to reporters, Lt. Cmdr. Kuebler explained<\/a> that photographs taken at the scene, which were not shown to observers of the trial proceedings, \u201cshow a pile of rubble from the collapsed roof, and then show the debris moved aside to reveal Khadr lying facedown in the dirt,\u201d which \u201cmake it abundantly clear Omar Khadr could not have thrown the hand grenade that killed 1st Sgt. Speer.\u201d<\/p>\n

A new chief judge<\/strong><\/p>\n

As prosecutors vowed to press ahead with Khadr\u2019s trial on January 26, brushing off the defense team\u2019s perennial cry that juveniles should not be prosecuted for war crimes<\/a>, and apparently secure that they have other evidence of Khadr making and planting roadside bombs in Afghanistan which will prove that he \u201cknowingly\u201d carried out crimes, the next example of the Commissions\u2019 blinkered view of reality came on December 15, when the Pentagon announced that Army Col. James Pohl, who had presided over the courts martial of several soldiers in the Abu Ghraib scandal<\/a>, had been appointed as the new chief judge.<\/p>\n

Pohl replaced Marine Col. Ralph Kohlmann (whose retirement plans had enabled KSM to mock him for his lack of commitment in September), and had already established himself as an independent-minded judge at Guant\u00c3\u00a1namo. As Carol Rosenberg<\/a> explained, in March, he \u201csternly informed\u201d prosecutors in the case of Ahmed al-Darbi, a Saudi seized in Azerbaijan and accused of \u201cplotting a never-realized attack on an unnamed ship in the Strait of Hormuz,\u201d that defense lawyers \u201cshould have easy access to their clients.\u201d Lawyers for the 33-year old father of two maintain that al-Darbi was tortured in US custody and that the government\u2019s allegations are reliant on 119 self-incriminating statements.<\/p>\n

Col. Pohl also refused to endorse a request from prison commanders to approve violent \u201cForced Cell Extractions\u201d when prisoners refused to come to the courtroom, and on his first day in his new job, at a pre-trial hearing for al-Darbi, allowed the Saudi to make an appeal to Barack Obama. \u201cWaving a copy of an American Civil Liberties Union poster with a pensive Obama and his campaign\u2019s closure pledge on it,\u201d as Rosenberg<\/a> explained, al-Darbi said, \u201cI hope this location will be closed as he promised. He will earn back the legitimacy the United States has lost as a world leader.\u201d<\/p>\n

This was the last hearing before the eve of Barack Obama\u2019s inauguration, when final pre-trial hearings are supposed to begin in Omar Khadr\u2019s case, and a mental competency hearing is scheduled for alleged 9\/11 co-conspirator Ramzi bin al-Shibh, but although Col. Pohl acknowledged that he was \u201caware that on Jan. 20 there will be a new commander-in-chief, which may or may not impact on these proceedings,\u201d he advised everyone connected with the Commissions to stay focused \u201cunless and until a competent authority tells us not to.\u201d<\/p>\n

While this was a fair warning, Col. Pohl\u2019s awareness of political realities was not reflected elsewhere in the Pentagon, nor, I suspect, in the Office of the Vice President, where, as I explained in my article in October<\/a> that also looked at the sacking of Brig. Gen. Hartmann and the resignation of Lt. Col. Vandeveld, the architects of the Commissions \u2013 Dick Cheney and his chief of staff David Addington \u2013 seem determined to continue playing out their deranged fantasies until the moment they leave office.<\/p>\n

A new prisoner is charged: the story of Tarek El-Sawah<\/strong><\/p>\n

On December 16, just as three Bosnian Algerians flew home from Guant\u00c3\u00a1namo, after Judge Richard Leon, a Bush appointee, threw their cases out<\/a> of his habeas court for lack of evidence, the Pentagon announced that another Bosnian prisoner, Tarek El-Sawah (aka Tariq al-Sawah), a 51-year old originally from Egypt, was the 27th prisoner to be put forward for trial by Military Commission. The Pentagon also reinstated the charges (PDF<\/a>) against the Sudanese prisoner Noor Uthman Muhammed, allegedly the deputy emir of the Khaldan training camp, which had been dropped<\/a> in October.<\/p>\n

In El-Sawah\u2019s charge sheet (PDF<\/a>), in which he was charged with conspiracy and providing material support for terrorism, it was alleged that, between October 2000 and November 2001, he had trained at al-Farouq (the main training camp for Arabs in the years before the 9\/11 attacks), had taught \u201cthe fundamentals of how to use explosives to members of al-Qaeda, the Taliban and others,\u201d and had \u201cdeveloped and successfully tested a remote controlled limpet mine for use against US warships\u201d at the Tarnak farms training camp, which he had undertaken \u201cat the direction of a member of al-Qaeda\u2019s Shura Council.\u201d It was also alleged that he had written a 400-page manual on bomb-making, and had fought against US and coalition forces in the Tora Bora mountains, until he was wounded and captured.<\/p>\n

How much truth there is to these charges is difficult to ascertain. El-Sawah was certainly a militant, but in 2004, at his only appearance before a tribunal at Guant\u00c3\u00a1namo, there was no mention of the bomb-making manual or the limpet mine, and he insisted that both his military commitment \u2013 and the training he briefly gave to others in August 2001 \u2013 was directed exclusively at the Northern Alliance.<\/p>\n

El-Sawah explained that he had traveled to Bosnia as an aid worker in 1992, had married a Bosnian woman and had only gone to Afghanistan to see if it was suitable place to take his family. Once there, however, he clearly succumbed to the most virulent Taliban propaganda against Ahmed Shah Massoud, the leader of the Northern Alliance, who was assassinated by al-Qaeda agents on September 9, 2001. He told his tribunal, \u201cOne time in a jihad, Massoud killed about 10,000 Muslims in an hour.\u201d Reiterating that it was his intention solely to support those who were being oppressed by the Northern Alliance, he said, \u201cThere are no rules in the United States to prevent it if you want to fight for religion. There are no rules to direct me not to defend people.\u201d He also pointed out that he went to Afghanistan to fight the Northern Alliance before 9\/11, when it was no business of the Americans, and asked, \u201cIf Massoud and Dostum are American allies, they were not an alliance before September 11th, were they?\u201d<\/p>\n

El-Sawah also denied an allegation that he had admitted being a member of al-Qaeda, denied an allegation that he met Osama bin Laden, saying that he saw him once at a meeting of about 250 people, but had no opportunity to actually meet him, and also denied an allegation that he had engaged in hostilities against the United States. In a comment that cut to the heart of what was essentially a proxy war, fought by Afghans with US air support, he said, \u201cThere was no fighting against Americans. If there were any American soldiers saying they were fighting in Afghanistan, bring them here to me and show the evidence.\u201d<\/p>\n

He also explained that he was sold for money, telling his tribunal, \u201cbecause the Americans offered $5,000 to anyone who captured us, they [the Northern Alliance] were fighting us and they kept us alive to get the $5,000,\u201d and gave a poignant description of his departure from Jalalabad into the Tora Bora mountains, in which he emphasized that the war in Afghanistan and the fall of the Taliban had triggered an exodus of all kinds of people, not just al-Qaeda and Taliban fighters. \u201cWe left everything,\u201d he said. \u201cWe were moving through mountains and caves; there were hundreds of families, children, women and people were climbing through the mountains. What were we to do? Some people were escaping from other fronts, near Jalalabad and Kabul. There were too many people there.\u201d<\/p>\n

Charges referred in the case of torture victim Abdul Rahim al-Nashiri<\/strong><\/p>\n

\"\"The administration\u2019s final gesture, before the Christmas break, was for Susan Crawford, the Commissions\u2019 \u201cConvening Authority\u201d \u2013 and a close friend of both Dick Cheney and David Addington \u2013 to confirm the charges<\/a> that were filed last July against Abdul Rahim al-Nashiri<\/a>. A Saudi, and one of 14 \u201chigh-value detainees\u201d transferred to Guant\u00c3\u00a1namo from secret CIA prisons in September 2006, al-Nashiri, who was seized in the United Arab Emirates in November 2002, was charged for his alleged role in the attacks on the USS The Sullivans<\/em> and the USS Cole<\/em> in 2000, and the French tanker Limburg<\/em> in 2002.<\/p>\n

Al-Nashiri faces the death penalty if convicted, although his trial, should it proceed, will undoubtedly be complicated by the fact that he is one of three \u201chigh-value detainees\u201d whom CIA director Michael Hayden admitted last February had been subjected to waterboarding<\/a> in secret CIA custody. In his tribunal at Guant\u00c3\u00a1namo in 2007, al-Nashiri made a point of mentioning that he had made up false confessions after being tortured. \u201cFrom the time I was arrested five years ago,\u201d he said, \u201cthey 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.\u201d<\/p>\n

Charges dropped against Abdul Ghani, a minor Afghan insurgent<\/strong><\/p>\n

On the same day that the charges against al-Nashiri were confirmed, there was better news for Abdul Ghani<\/a>, an Afghan prisoner put forward for trial at the end of July. Without providing any explanation, Susan Crawford dismissed the charges \u201cwithout prejudice,\u201d which meant, as the Pentagon explained, \u201cthat the government has the option of charging Ghani at a later date,\u201d but it would surely be better for the 36-year old to sent back to Afghanistan instead, where the Afghan authorities can work out if he actually constitutes a threat.<\/p>\n

At best a minor Afghan insurgent, Ghani was charged with firing rockets at US forces, planting \u201cland mines and other explosive devices on more than one occasion for use against US and coalition forces,\u201d attacking Afghan soldiers, and \u201caccept[ing] monetary payments, including payment from al-Qaeda and others known and unknown, to commit attacks on US forces and bases.\u201d As I wrote at the time, however, \u201cApart from the inclusion of the magic words \u2018al-Qaeda,\u2019 there was nothing in Abdul Ghani\u2019s 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<\/em> in 2000, or even, in fact, that he should have been sent to Guant\u00c3\u00a1namo at all.\u201d<\/p>\n

Time for change<\/strong><\/p>\n

With less than two weeks until Dick Cheney and David Addington are obliged to leave the White House, when a new broom will also no doubt sweep the corridors of the Pentagon, it remains possible that the architects of the Commissions will indulge in a final round of last-minute tinkering, hoping that their failed experiment will live on, but for the rest of us, Barack Obama\u2019s inauguration cannot come soon enough, nor, indeed, can the fulfillment of a promise<\/a> that he made in August 2007:<\/p>\n

As President, I will close Guant\u00c3\u00a1namo, reject the Military Commissions Act, and adhere to the Geneva Conventions. Our Constitution and our Uniform Code of Military Justice provide a framework for dealing with the terrorists \u2026 The separation of powers works. Our Constitution works. We will again set an example to the world that the law is not subject to the whims of stubborn rulers, and that justice is not arbitrary.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

With less than two weeks until the Bush administration leaves office, Andy Worthington, author of The Guant\u00c3\u00a1namo Files: The Stories of the 774 Detainees in America\u2019s Illegal Prison, reports on developments \u2013 or the lack of them \u2013 during the last month in the Military Commissions, the much-criticized trial system for \u201cterror suspects\u201d that was […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[10],"tags":[33],"class_list":{"0":"post-5075","1":"post","2":"type-post","3":"status-publish","4":"format-standard","6":"category-contributions","7":"tag-guantanamo"},"_links":{"self":[{"href":"http:\/\/rinf.com\/alt-news\/wp-json\/wp\/v2\/posts\/5075","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/rinf.com\/alt-news\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/rinf.com\/alt-news\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/rinf.com\/alt-news\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"http:\/\/rinf.com\/alt-news\/wp-json\/wp\/v2\/comments?post=5075"}],"version-history":[{"count":0,"href":"http:\/\/rinf.com\/alt-news\/wp-json\/wp\/v2\/posts\/5075\/revisions"}],"wp:attachment":[{"href":"http:\/\/rinf.com\/alt-news\/wp-json\/wp\/v2\/media?parent=5075"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/rinf.com\/alt-news\/wp-json\/wp\/v2\/categories?post=5075"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/rinf.com\/alt-news\/wp-json\/wp\/v2\/tags?post=5075"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}