Betrayals, Backsliding and Boycotts: The Continuing Collapse of Guantanamo’s Military Commissions
By Andy Worthington, Andy Worthington’s Blog.
Guantánamo is in total
disarray.
Anyone who has kept half an eye on
the proceedings at the Military Commissions in Guantánamo — the unique
system of trials for “terror suspects” that was conceived
in the wake of the 9/11 attacks by Vice President Dick Cheney and his
close advisers — will be aware that their progress has been faltering
at best. After six and a half years, in which they have been ruled illegal
by the Supreme Court, derailed by their own military judges, relentlessly
savaged by their own military defense lawyers, and condemned as politically
motivated by their own former chief prosecutor, they have only secured
one contentious result: a plea bargain negotiated by the Australian
David Hicks, who admitted to providing “material support for terrorism,”
and dropped his well-chronicled claims of torture and abuse by US forces,
in order to secure his return to Australia to serve out the remainder
of a meager nine-month sentence last March.
In the last few weeks, however, Cheney’s
dream has been souring at an even more alarming rate than usual. Following boycotts
of pre-trial hearings in March and April by three prisoners — Mohamed
Jawad, Ahmed al-Darbi and Ibrahim al-Qosi — the latest appearance by
Salim Hamdan, a Yemeni who worked as a driver for Osama bin Laden, spread
the words “boycott” and “Guantánamo” around the
world.
Hamdan is no ordinary Guantánamo prisoner.
It was his case, Hamdan v. Rumsfeld, that shut down the Military
Commissions’ first incarnation in June 2006, when the Supreme Court
ruled that they were illegal, a decision that forced the administration
to press new legislation — the Military Commissions Act — through
a sleeping Congress later that year.
But Hamdan’s fame meant little to him
on April 29, when he too decided to boycott his trial, telling Navy
Capt. Keith Allred, the judge in his last pre-trial hearing before his
trial is scheduled to begin, “The law is clear. The Constitution
is clear. International law is clear. Why don’t we follow the law? Where
is the justice?”
For his part, Capt. Allred did not
give up without attempting to persuade Hamdan that he should believe
in the legal process before which he found himself. “You should
have great faith in the law,” he said. “You won. Your name
is all over the law books.” This was true, but it was little consolation
for Hamdan, who was charged again as soon as the Commissions were revived
in Congress. Nor could Capt. Allred’s addendum — “You even won
the very first time you came before me” — sway him, even though
that too was true.
Last June, when Hamdan appeared before
Capt. Allred for the first time, in the first pre-trial hearing for
his new Military Commission, Allred dismissed
the case, pointing out that the Military Commissions Act, which had
revived the Commissions, applied only to “unlawful enemy combatants,”
whereas Hamdan, and every other prisoner in Guantánamo for that matter,
had only been determined to be “enemy combatants” in the tribunals
— the Combatant Status Review Tribunals — that had made them eligible
for trial by Military Commission.
It was small wonder that Hamdan was
despondent, however. Two months later, an appeals court reversed
Allred’s decision, and Hamdan — twice a victor — was charged once
more, and removed from a privileged position in Guantánamo’s Camp IV
— reserved for a few dozen compliant prisoners who live communally
— to Camp VI, where, like the majority of the prisoners, he has spent
most of his time in conditions that amount to solitary confinement,
and where, as his lawyers pointed out in February, his mental health has deteriorated
significantly.
As he prepared to boycott proceedings,
Hamdan had a few last questions for Capt. Allred. He asked the judge
why the government had changed the law — “Is it just for my case?”
— and responded to Allred’s insistence that he would do everything
he could to give him a fair trial by asking, “By what law will
you try me?” When Allred replied that he would be tried under the
terms of the Military Commissions Act, Hamdan gave up. “But the
government changed the law to its advantage,” he said. “I
am not being tried by the American law.”
Col. Morris Davis condemns the Commissions
(again)
Hamdan’s eloquent and restrained explanation
for his boycott was the most poignant event in his hearing, but it was
not the most explosive. That accolade was reserved for Col. Morris Davis,
the former chief prosecutor for the Commissions, who resigned
noisily last October, citing political interference in the process.
Once the Commissions’ stoutest supporter — in 2006 he told reporters,
“Remember if you dragged Dracula out into the sunlight he melted?
Well, that’s kind of the way it is trying to drag a detainee into the
courtroom” — Col. Davis explained his Damascene conversion in an op-ed
for the Los Angeles Times in December.
Laying into his chain of command, Col.
Davis lambasted
his immediate boss, Brig. Gen. Thomas Hartmann, who had recently been
appointed as the legal adviser to the Commissions’ “convening authority”
Susan Crawford, for politicizing the process, attempting to hold higher
profile trials behind closed doors (whereas Davis insisted that transparency
was “critical”). He also criticized Crawford, a retired judge,
who had served as Army counsel and defense department inspector under
Dick Cheney in the first Bush administration in the 1980s, for overstepping
her administrative role by “intermingling convening authority and
prosecutor roles” and “perpetuat[ing] the perception of a
rigged process stacked against the accused.”
Col. Davis also delivered a particularly
stern rebuke to Crawford’s overall boss, the Department of Defense’s
chief counsel William J. Haynes II, pointing out Haynes’ role in “authorizing
the use of the aggressive interrogation techniques some call torture,”
declaring, “I had instructed the prosecutors in September 2005
that we would not offer any evidence derived by waterboarding, one of
the aggressive interrogation techniques the administration has sanctioned,”
and declaring, unambiguously, that he resigned “a few hours after”
being informed that he had been placed in a chain of command under Haynes.
On April 28, Col. Davis testified for
Hamdan and reprised his complaints, telling Capt. Allred, as the Washington Post described it, that senior Pentagon officials,
including deputy defense secretary Gordon England, had “made it
clear to him that charging some of the highest-profile detainees before
elections this year could have ‘strategic political value.'” After
pointing out that he had wanted to wait until both the cases and the
entire Military Commissions system had “a more solid legal footing,”
he reiterated his complaints against Haynes, telling Navy Lt. Cmdr.
Brian Mizer, Hamdan’s military defense lawyer, what he had told The Nation in February: that, during a discussion of
the Nuremberg Trials, in which Davis had noted that there had been some
acquittals, which had “lent great credibility to the proceedings,”
Haynes had told him, “We can’t have acquittals. We’ve been holding
these guys for years. How can we explain acquittals? We have to have
convictions.”
Col. Davis also defended his uncompromising
opposition to the use of evidence obtained through torture, once more
directing particular criticism at Brig. Gen. Hartmann. “To allow
or direct a prosecutor to come into the courtroom and offer evidence
they felt was torture, it puts a prosecutor in an ethical bind,”
he said, adding that, in response to his complaints, Hartmann had replied
that “everything was fair game — let the judge sort it out.”
He added that Hartmann “took ‘micromanagement’ of the prosecution
effort to a new level and treated prosecutors with ‘cruelty and maltreatment,'”
and explained that he “was trying to take over the prosecutor’s
role, compromising the independence of the Office of Military Commissions,
which decides which cases to bring and what evidence to use.”
Ali Hamza al-Bahlul and Omar Khadr
A week later, on May 7, the boycott
bandwagon rolled on when Ali Hamza al-Bahlul, another Yemeni, also refused
to cooperate. Sitting alone in Camp Justice, Guantánamo’s new courtroom,
having spurned the assistance of his government-appointed attorney,
al-Bahlul, who is accused of producing videos for al-Qaeda, and who
famously boycotted his pre-Hamdan Commission hearings in 2006, essentially
picked up where he left off over two years ago, proudly proclaiming his association with Osama bin Laden, and
telling his judge, Army Col. Peter Brownback, “We will continue
our jihad and nothing’s going to stop us. You must not oppress the people
in the land. Your oppression against us and your support to the strategic
ally in the region is what made me leave my house and today, I’m telling
you, and you’re a man of law, if you sentence me to life ” me and
the others will be the reason for the continuation of the war against
America.” He added that he did not intend to dispute any of the
prosecution’s allegations. “I am responsible for my own actions
in this world and the afterworld,” he said. “I don’t consider
it to be a crime.”
While al-Bahlul’s words — delivered
to full advantage from his sudden perch in the media spotlight — served
only to underline, incongruously, the utter silence in which around
200 other Guantánamo prisoners are held (those considered less dangerous,
or not dangerous at all, whom the administration has no intention of
ever prosecuting), his words were almost immediately overshadowed when,
the day after, Col. Brownback, who was on the verge of securing a dubious
place in the history books by ruling that the trial of Omar Khadr
— the only prisoner to date who has not boycotted his hearings — would
go ahead in June, threatened his own boycott.
Furious that, despite repeated requests,
the prosecution (led by Maj. Jeffrey Groharing) had failed to provide
Khadr’s lawyers with their client’s Detainee Information Management
System records, to analyze his treatment in an attempt to uncover reasons
why incriminating statements — possibly obtained through torture —
should be suppressed, Col. Brownback declared,
“I have been badgered, beaten and bruised by Maj. Groharing since
the 7th of November to set a trial date. To get a trial date, I need
to get discovery done.” He then ordered the government to provide
the records by May 22, or, he said, he would suspend the proceedings
entirely
While Khadr’s lawyer, Lt. Cmdr. William
Kuebler, expressed skepticism about Col. Brownback’s exclamation, telling
reporters, “What we’ve seen in this process is that military judges
will give the defense pyrrhic victories when it doesn’t threaten the
foundations of the system,” Brownback’s intervention at the very
least delayed confirmation of his own notoriety. If he decides, after
May 22, to proceed with the trial of Khadr, who was just 15 years old
when he was captured after a gun battle in Afghanistan that left one
US soldier dead, he will be the first judge since the Second World War
to proceed with a war crimes trial against a prisoner who was just a
child when he was captured.
Judge bars Commissions’ legal adviser
The day after Col. Brownback’s shake-up
of the prosecutors in Omar Khadr’s case, Capt. Allred, having mulled
over Morris Davis’ complaints against Brig. Gen. Hartmann, surprised
everyone, and threatened the Commissions’ teetering legitimacy once
more, by disqualifying Hartmann from playing any role in Salim Hamdan’s
trial. Clearly swayed by Davis’ testimony, Capt. Allred ruled on May
9 that he was “too closely allied with the prosecution,” as
the New York Times described it, “National attention focused on this
dispute has seriously called into question the legal adviser’s ability
to continue to perform his duties in a neutral and objective manner,”
Allred wrote, explaining that public concern about the fairness of the
cases was “deeply disturbing,” and that he did not find that
Hartmann “retains the required independence from the prosecution.”
The Times followed up with more excerpts from Capt. Allred’s decision,
which confirmed his support for Morris Davis’ views. “Telling the
chief prosecutor (and other prosecutors),” he wrote, “that
certain types of cases would be tried and that others would not be tried,
because of political factors such as whether they would capture the
imagination of the American people, be sexy, or involve blood on the
hands of the accused, suggests that factors other than those pertaining
to the merits of the case were at play.”
Capt. Allred also referred explicitly
to Morris Davis’ statement that Brig. Gen. Hartmann had put pressure
on him to use evidence obtained through torture. Noting, as the Times
put it, that “prosecutors have an ethical obligation to present
only evidence they consider reliable,” Capt. Allred wrote that
directing the use of “evidence that the chief prosecutor considered
tainted and unreliable, or perhaps obtained as a result of torture or
coercion, was clearly an effort to influence the professional judgment
of the chief prosecutor.”
9/11 charges confirmed, but Mohammed
al-Qahtani dropped
While the administration tried to make
light of Capt. Allred’s ruling, arguing that it applied only to Hamdan’s
case, and that Brig. Gen. Hartmann’s position was secure, it was difficult
not to whiff a stench of desperation in the Pentagon’s announcement,
just three days later, that a date had been set for the first pre-trial
hearing of another group of prisoners — the alleged 9/11 conspirators,
including Khalid Sheikh Mohammed, who confessed in his tribunal last
year that he was “responsible for the 9/11 operation, from A to
Z” — against whom charges had been announced
in February.
Although it’s almost certain that this
decision — though perhaps rushed forward — had already been making
its tortuous way through the necessary bureaucratic processes, its propaganda
value was immediately undermined when it became apparent that, of the
six men initially charged, one — Mohammed al-Qahtani — was missing
from the final charge sheet.
As Time explained, the charges against al-Qahtani
were dropped by Susan Crawford “without formal explanation,”
and Brig. Gen Hartmann’s offering — that the dismissal provided evidence
of the “strength of the system and the careful, deliberative and
fair legal process in place at Guantánamo” — was hardly sufficient
to paper over the cracks. Although the charges were dismissed without
prejudice, meaning that they could be reinstated in the future, nobody
expects that this will happen.
The problem, as immediately became
apparent, is that al-Qahtani, unlike the other five men, who were held
for many years in secret prisons run by the CIA, was subjected to torture
in Guantánamo, under a program devised specifically for him and approved
by Donald Rumsfeld in late 2002. The details of his ordeal are well
known, as Time published his leaked interrogation log in 2006,
and even a military investigation in 2005, which stopped short of describing
his treatment as torture, concluded that he had been subjected to abuse.
In the world of the Military Commissions,
al-Qahtani’s case was damaging for two specific reasons: firstly, because,
although the other five men were tortured in CIA custody — and the
CIA has publicly acknowledged that KSM was subjected to the torture technique
known as waterboarding (a horrendous form of controlled drowning) —
he and the others have been reinterrogated by “clean teams” of FBI agents,
who have solicited confessions without resorting to torture, whereas
al-Qahtani, according to his lawyers, has not.
Leaving aside for a moment the implausibility
of somehow “purifying” confessions obtained through torture
by using “clean teams” — and what it reveals, unintentionally,
about the “dirty teams” whose activities are purportedly being
airbrushed from history — the second reason for dropping charges against
al-Qahtani only reinforces the legal netherworld in which the Commissions
operate. According to their rules, the records of al-Qahtani’s interrogations,
which took place in Guantánamo, could be produced as evidence of torture,
whereas those of the “high-value detainees,” interrogated
by CIA teams in secret overseas prisons, can be overlooked, because,
as Time put it, “Military courts overseeing Guantánamo
have indicated they cannot compel evidence from US intelligence agencies.”
In reality, of course, it’s inconceivable
that the trials of tortured prisoners — even those who apparently masterminded
the 9/11 attacks — can actually proceed without torture being mentioned,
but for now, at least, the administration is clinging to its “clean
team” alibi, and hoping to minimize the fallout from Capt. Allred’s
latest ruling.
As for al-Qahtani, described by his
lawyer, Gita Gutierrez, as a “broken man, broken by torture,”
his only way out now is for the Saudi government to negotiate his repatriation.
Gutierrez told Time that she was “extremely concerned about
his ability to survive mentally and physically for much longer in Guantánamo,”
and stated, unequivocally, that the dismissal of charges “clearly
indicates the government’s awareness that any and all statements obtained
from Mohammed [al-]Qahtani were extracted by torture or the threat of
torture.” Replace his name with that of Khalid Sheikh Mohammed
or any of the other four men charged — Ramzi bin al-Shibh, Mustafa
al-Hawsawi, Ali Abdul Aziz Ali, and Walid bin Attash — and you see
the problem that faces the administration as it prepares for the most
significant trial since 9/11.
Andy Worthington is a writer and
historian, and author of The Guantánamo Files.
His writings can be found at http://www.andyworthington.co