• 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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