Torture, Preventive Detention and the Terror Trials at Guantnamo

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In the real
world outside the U.S. Naval Base at Guantánamo Bay, Cuba,
Barack Obama’s pledge
to close Guantánamo and scrap the military commissions (the
system of trials for “terror suspects” that was established
in the wake of the 9/11 attacks) has provoked a rare outburst of
frenzied media coverage.

With no concrete
plans announced by the President-elect’s transition team, pundits
and off-the-record officials of all political hues have stepped
in to fill the void with speculation
about the significance of the remaining 255 prisoners, some shrill
demands for legislation endorsing “preventive detention,”
some equally shrill warnings that robust techniques will be needed
in the future to deal with captured terrorists, and a range of opinions
about whether the Guantánamo prisoners regarded as a genuine
threat to the United States (estimates
range from several dozen prisoners to around 80) should be transferred
to the U.S. mainland to face trials in federal courts or in another
brand-new system.

Some of these
opinions are genuinely troubling, and reveal the extent to which
the government’s fear-filled “war on terror” rhetoric
of the last seven years has permeated the U.S. psyche. Proposals
to create new legislation authorizing “preventive detention,”
for example, actually seek to justify much of what the Bush administration
has been doing at Guantánamo, and it beggars belief that
citizens in a civilized society founded on the rule of law could
attempt to justify imprisoning people not for what they have done,
but to prevent what they could conceivably do in future.

The proposal
is doubly disturbing because the government’s assertions that
some of the prisoners may be dangerous comes not from evidence that
can be tested in a court of law, but from intelligence reports that
may or may not be reliable, and from hearsay and confessions –
made by other prisoners, or by the prisoners themselves – that
may have been produced through the use of torture or other forms
of coercion, or through bribery (a well-chronicled “rewards”
system for prisoners regarded as “cooperative”).

In addition,
calls for robust techniques to deal with terror suspects captured
in the future are clearly influenced by the Bush administration’s
arguments that prisoners seized in the “war on terror”
constitute a threat of a kind never encountered before, and that
this threat justifies its attempts to redefine torture, and its
endorsement of the use of torture by U.S. forces. For the record,
torture, as defined in the UN
Convention Against Torture
(to which the U.S. is a signatory)
is defined as “any act by which severe pain or suffering, whether
physical or mental, is intentionally inflicted on a person,”
and not, as the U.S. administration claimed in its notorious “Torture
Memo
” of August 2002, an act producing pain which is “equivalent
in intensity to the pain accompanying serious physical injury, such
as organ failure, impairment of bodily function, or even death.”

Those endorsing
greater latitude to deal with terror suspects in the future have
presumably forgotten the extent to which the administration has
belittled the intelligence agencies’ skilled interrogators,
who contributed to 107
successful terrorist prosecutions
in U.S. federal courts without
resorting to the use of torture, and its disdain for the psychological
techniques enshrined in the Army Field Manual, which not only prohibits
the use of torture, but of any kind of physical violence. Both,
however, have a proven track record of success, unlike the torturers,
whose activities constitute war crimes, however much the Bush administration
has attempted to disguise them, and are also morally corrosive and
counter-productive, producing, at best, ripples of truth in a sea
of false confessions, with no practical way of separating fact from
fiction.

Much of this
has been confirmed by Dan Coleman, a senior FBI interrogator who
worked on several high-profile terrorism cases before the 9/11 attacks.
Coleman is on record as stating that “people don’t do
anything unless they’re rewarded.” In an interview in
2006 with the New
Yorker
’s Jane Mayer, he acknowledged that brutality
may “yield a timely scrap of information,” but is “completely
insufficient” in the longer fight against terrorism. “You
need to talk to people for weeks. Years,” he explained.

When it comes
to proposals to establish a new trial system for terror suspects,
those putting forward such ideas have obviously failed to scrutinize
the failures of the system conceived by Dick
Cheney
and his close advisers in November 2001. Thrown out by
the Supreme Court in June 2006, the commissions were revived by
Congress later that year, but have struggled to establish their
legitimacy, primarily because the government-appointed military
judges are empowered to accept evidence obtained through coercion,
to prevent all mention of evidence obtained through torture, and
to blur the distinction between the two, and also because, as I
reported at length in a previous
article
, a growing body of evidence indicates that the entire
system is rigged, with Pentagon representatives who are supposed
to be impartial actually taking their orders from the heavily biased
Office of the Vice President.

It remains
to be seen how this chain of command – which pivots on the
role played by retired judge Susan Crawford, the Commission’s
“Convening Authority,” and a close friend of both Dick
Cheney and his chief of staff David Addington – will survive
the transition to the Obama administration, but enthusiasts for
the creation of another brand-new system should really take on board
the sustained opposition to the commissions that has been mounted
from within.

Those who
have become implacably opposed to the system are not only the military
defense lawyers, who have been prepared to sacrifice
their careers
in defense of justice, but also Col. Morris Davis,
the former chief prosecutor, and several former prosecutors, including,
most recently, Lt. Col. Darrel Vandeveld, who turned from being
a “true believer to someone who felt truly deceived” by
the system, when he discovered that evidence vital to the defense
was being routinely withheld in the case of Mohamed
Jawad
, an Afghan teenager accused of a grenade attack on U.S.
forces in December 2002.

In the meantime,
while enthusiasts for a new trial system indulge their largely abstract
musings, the reality of the commissions themselves continues to
confound reality, as those in charge of the process persist in behaving
as though it is business as usual.

On the eve
of the presidential election, the failure of the commissions to
deliver anything approaching justice was demonstrated when Ali Hamza
al-Bahlul, a self-confessed member of al-Qaeda, received a life
sentence
for conspiracy and providing material support for terrorism,
which is supposed to be served in total isolation at Guantánamo.
Al-Bahlul was convicted after a disgraceful one-sided show trial
in which, because of the ill-defined rules governing the commissions,
he was allowed to score what was effectively a propaganda victory
for al-Qaeda by refusing to mount a defense.

Since then,
the commissions have stumbled on as though nothing changed with
the elections on November 5. On November 17, the chief judge, Marine
Col. Ralph Kohlmann, who had been overseeing the meandering pre-trial
proceedings for Khalid
Sheikh Mohammed
and four other men accused of involvement in
the 9/11 attacks, announced his immediate
retirement
, scuppering any possibility that the commissions’
flagship trial would take place before the Bush administration leaves
office.

At a hearing
in September
, Kohlmann had admitted that he was due to retire
in April 2009, prompting Mohammed to ask him to disqualify himself
from the case, on the basis that he “might inappropriately
rush the proceedings.” Any kind of “rush” is now
completely out of the question, of course, and instead, as Lt. Cmdr.
James Hatcher (the lawyer for one of the accused, Walid bin Attash)
explained, Kohlmann’s departure means that “a new round
of pretrial hearings [will] be required and the new judge [will]
be forced to reexamine earlier rulings,” which will “make
an already complex case even more complex.”

The departure
of Kohlmann, a no-nonsense operator who has been involved in the
commissions since December 2005, will certainly not make the trial
system’s work any easier, especially as his chosen successor,
Army Col. Stephen Henley, has “shown more patience” with
defense attorneys than his predecessor (as the Miami
Herald
described it), and was, at the time of his appointment,
the only judge to have ruled that a major part of the prosecution’s
evidence in one case – that of Mohamed Jawad – was inadmissible,
because it had been extracted through the use of torture.

Jawad’s
trial is scheduled to begin on January 5, 2009, but the day after
Henley’s appointment to the trial of Khalid Sheikh Mohammed
and his alleged co-conspirators, he struck another blow to the prosecution
in Jawad’s case by ruling that a second confession, made in
U.S. custody the day after his Afghan confession, was also inadmissible,
partly because, as the Associated
Press
described it, “the U.S. interrogator used techniques
to maintain ‘the shock and fearful state’ associated with
his arrest by Afghan police, including blindfolding him and placing
a hood over his head.” As Henley explained in his ruling,

“The
military commission concludes the effect of the death threats which
produced the accused’s first confession to the Afghan police had
not dissipated by the second confession to the U.S. In other words,
the subsequent confession was itself the product of the preceding
death threats.”

Elsewhere
in the commissions, developments in two other cases also failed
to advance the trial system’s legitimacy. In the case of Ibrahim
al-Qosi
, a Sudanese prisoner arraigned on November 19, the major
claim against him – that he was responsible for al-Qaeda’s
payroll in Khartoum, before Osama bin Laden and his entourage moved
back to Afghanistan in 1996 – has been dropped by the government,
and all that remains are claims that he worked at an al-Qaeda compound
from 1996 to 1998, that he fought “as an al-Qaeda mortar man
near Kabul from 1998 to 2001,” and that he sometimes worked
as a driver and bodyguard for bin Laden.

Moreover,
al-Qosi’s civilian lawyer, Lawrence Martin, has a take on his
client’s role, which, for the government, must sound uncomfortably
similar to that of Salim Hamdan. A Yemeni, and one of seven drivers
for bin Laden, Hamdan has just been repatriated
to serve out the last month of the meager
sentence
he received in August, after his military jury threw
out
the conspiracy charge against him, accepting that he knew
nothing about the workings of al-Qaeda. At al-Qosi’s arraignment,
Martin declared, “Mr. al-Qosi, far from being a war criminal,
was a cook,” adding, “He was not even a cook for bin Laden,
but a cook for a compound where bin Laden was sometimes a visitor.”

The other
arraignment on November 19 – that of Mohammed Hashim, another
Afghan prisoner – was even less justifiable. Hashim was charged
in June with spying for al-Qaeda in Afghanistan and conducting a
rocket attack on U.S. forces, even though he was, at best, a minor
Afghan insurgent. As in the cases of two
other
Afghans (in addition to Mohamed Jawad), it is difficult to work
out how the administration construes these charges as “war
crimes.” His case is complicated by the fact that his publicly
available testimony – which is sprinkled with implausible references
to his knowledge of the 9/11 attacks (via a member of the Northern
Alliance, the implacable enemies of both al-Qaeda and the Taliban),
his supposed relationship with Osama bin Laden and purported 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 all
these dubious developments, the most worrying sign that the commissions
continue to operate in a parallel reality also came on November
19, when Col. Lawrence Morris, the chief prosecutor, announced that
charges against Mohammed al-Qahtani, which were dropped without
explanation in May, were to be filed again, and that charges against
five other prisoners, which were dropped last month, would also
be filed again in the near future.

The case of
Mohammed al-Qahtani is one of the most shocking in the whole of
Guantánamo’s long and ignoble history. Regarded as the
proposed 20th hijacker for the 9/11 attacks, until he was turned
away by immigration officials in Orlando, Florida, al-Qahtani was
apparently being questioned by the FBI with some success (through
the old-school techniques favored by Dan Coleman), when the Pentagon,
in the fall of 2002, grew impatient with the FBI’s results.

After securing
approval from Defense Secretary Donald Rumsfeld for a range of “enhanced
interrogations techniques,” al-Qahtani was interrogated for
20 hours a day over a 50-day period in late 2002 and early 2003,
as Time magazine revealed in an interrogation log (PDF)
made available in 2005. The techniques used – beyond the persistent
sleep deprivation – included extreme sexual humiliation and
“forced grooming” (shaving his hair and beard), and he
was also threatened by dogs, strip-searched and made to stand naked,
and made to bark like a dog and growl at pictures of terrorists.
On one occasion he was subjected to a “fake rendition,”
in which he was tranquilized, flown off the island, revived, flown
back to Guantánamo, and told that he was in a country that
allowed torture.

In addition,
as I explained in my book The
Guantánamo Files
, “The sessions were
so intense that the interrogators worried that the cumulative lack
of sleep and constant interrogation posed a risk to his health.
Medical staff checked his health frequently – sometimes as
often as three times a day – and on one occasion, in early
December, the punishing routine was suspended for a day when, as
a result of refusing to drink, he became seriously dehydrated and
his heart rate dropped to 35 beats a minute. While a doctor came
to see him in the booth, however, loud music was played to prevent
him from sleeping.”

Until Col.
Morris made his announcement, it had been widely presumed that the
charges against al-Qahtani had been dropped because – unlike
the interrogations in the secret CIA prisons in which Khalid Sheikh
Mohammed and other “high-value detainees” were held, which
can be excluded from their trials – the details of al-Qahtani’s
interrogations are not only publicly available, but were declared
to be “degrading and abusive” by a Pentagon inquiry in
2005 (PDF).

However, in
the parallel world of the military commissions, where the Bush administration’s
attempts to redefine torture are clearly still embraced with enthusiasm,
none of this seems to matter. Announcing his intention to charge
al-Qahtani again, Col. Morris declared, as the New
York Times
explained, that “prosecutors had decided there
was ‘independent and reliable’ evidence that Mr. Qahtani
had been plotting with the Sept. 11 hijackers.”

Col.
Morris also declared his intention to file new charges against the
five prisoners whose charges
were dropped
in October, which is almost as bewildering. When
the charges against Noor Uthman Muhammed, Ghassan al-Sharbi, Jabran
al-Qahtani, Sufyian Barhoumi and Binyam
Mohamed
were dropped, it was widely assumed that this was because
their prosecutor, Lt. Col. Vandeveld, who had just testified for
the defense in Jawad’s case after turning against the government,
had more revelations about the machinations of the prosecutors that
would undermine their cases. This may well be true, especially in
relation to Binyam Mohamed, a British resident who was sent to Morocco
in 2002 so that proxy torturers could spend 18 months extracting
a false confession from him regarding his role in a non-existent
“dirty bomb” plot.

Mohamed is
currently involved in legal
wrangling
over evidence of his rendition and torture in courts
on both sides of the Atlantic, and it is, therefore, yet another
sign of the commissions’ detachment from reality that Col.
Morris is planning to file new charges against him. What it demonstrates
above all, however, as with the case of Mohammed al-Qahtani, is
that Barack Obama will need to act swiftly and decisively after
January 20 if he is to demonstrate that, under his administration,
the use of torture – and of confessions obtained through torture
– will no longer be tolerated.

December
4, 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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