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.