20 Reasons to Shut Down the Guantnamo Trials

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As
Barack Obama and his transition team begin looking at ways to fulfill
the President-elect’s 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 Guantánamo, 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-Hawsawi’s
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 client’s corner.
Explaining that his client “doesn’t 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 day’s proceedings to be made available in English and
Arabic so that they can go over each day’s 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 Guantánamo 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. Kohlmann’s 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 Guantánamo that he was
the link between Osama bin Laden and the Nairobi cell during al-Qaeda’s
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 government’s
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 20th hijacker for the 9/11 attacks,
but was refused entry into the United States by immigration officials,
was tortured for several months at Guantánamo 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 Guantánamo 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, Kamin’s 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 May’s 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 Ghani’s 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 Guantánamo, 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.

November
18, 2008

Andy
Worthington is the author of
The Guantánamo Files: The Stories of the 774 Detainees in
America’s Illegal Prison
(published by Pluto Press).
Visit his website.

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