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June 3, 2008

Last Call at Gitmo

by Andy Worthington

Like alcoholics queuing up for drinks at closing time, the U.S. government is pressing charges against prisoners at Guantánamo at a frantic rate, anxious to be seen as validating the chronic lawlessness of the last seven years before November's presidential election.

At the end of last week, four more prisoners were put forward for trial by military commission (the show trials conceived by Dick Cheney in November 2001), bringing to 20 the total number charged – although one of the 20, David Hicks, opted for a plea bargain last year so that he could return home to Australia, and another, Mohammed al-Qahtani, had his charges dropped last month, when, it appears, the authorities realized that his torture in Guantánamo was far too publicly available to risk it being brought forward as evidence in a trial.

None of the cases has yet come to trial, as the business of arraignments and pre-trial hearings has been so time-consuming and fraught with problems that the fragile veneer of Congress-sanctioned legitimacy that cloaks the commission process has been threatened on more than one occasion; in particular, last June, when Col. Peter Brownback and Capt. Keith Allred, the judges in the first two cases following that of David Hicks – of the Canadian Omar Khadr and the Yemeni Salim Hamdan – shut down the whole process after they realized that the Military Commissions Act (the legislation that had revived the commissions after the Supreme Court ruled the whole process illegal in June 2006) had only authorized them to try "unlawful enemy combatants," whereas the tribunal process at Guantánamo, which, according to the terms of the MCA, had made them eligible for trial by military commission in the first place, had only found them to be "enemy combatants."

Although this disruption was dealt with when the administration cobbled together an appeal court to dismiss the judges' concerns, both Brownback and Allred have since demonstrated that, although the commissions themselves may be nothing more than show trials ("We can't have acquittals" was how the Department of Defense's chief counsel, William J. Haynes II, put it), the judges themselves were not prepared to be either ciphers or puppets, and were determined, instead, to do what judges are supposed to do, which is to assess the proceedings and the cases impartially.

Allred has featured more prominently in the media of late – first by endorsing former chief prosecutor Col. Morris Davis' complaints about the unacceptable politicization of the commissions process (complete with Haynes' "no acquittals" comments and Davis' disdain for the administration's insistence on introducing evidence obtained through torture), and then by delaying the start of Salim Hamdan's trial to allow time for the Supreme Court to deliver a long-awaited ruling on the prisoners' rights.

However, Brownback also weighed in recently, threatening to delay the start of Omar Khadr's trial because of what he perceived as delaying tactics on the part of the prosecution (led by Maj. Jeffrey Groharing), who, he said, had failed to provide Khadr's lawyers with records of his interrogations at Guantánamo, despite repeated requests to do so. "I have been badgered, beaten and bruised by Maj. Groharing since the 7th of November to set a trial date," Brownback exclaimed. "To get a trial date, I need to get discovery done."

While it's possible that Brownback's sudden removal last Thursday as the judge in Omar Khadr's case can be explained because he had actually come out of retirement to serve as a commission judge, and had reached the end of his required involvement, the timing has struck many observers – myself included – as more than a little suspicious, especially as the administration has refused to elaborate on the reasons for Brownback's departure – or dismissal. It remains to be seen whether any comment will eventually be forthcoming from Brownback himself, or, indeed, whether his replacement, Col. Patrick Parrish, will be more inclined to do his job without raising uncomfortable questions along the way.

Compared to this drama, the latest charges are, with one exception, rather less spectacular. The four men charged – Ghassan al-Sharbi, Jabran al-Qahtani (both Saudis), Sufyian Barhoumi (an Algerian), and Binyam Mohamed (a British resident) – have all been charged before, during the commissions' first incarnation, which was struck down as illegal in 2006. Nevertheless, doubts remain about their suitability for trials as significant "terror suspects."

The first three – who face charges of "conspiracy and material support for terrorism" – were captured with Abu Zubaydah, the alleged senior al-Qaeda operative whose mental health has repeatedly been called into doubt, following well-chronicled conflicts between the FBI, who interrogated him after he was first seized in March 2002, and who concluded that he had a personality disorder and was nothing more than a minor logistician, and the CIA, who believed him to be a major player, and subjected him to various forms of torture including waterboarding (the ancient torture technique that is a form of controlled drowning).

While it's noticeable that Abu Zubaydah himself has not yet been put forward for trial by military commission, the charges leveled against three of his supposed associates (mainly for alleged crimes relating to the planned use of explosives) will ensure that he does not escape the picture. Although two of the three men – Qahtani and Barhoumi – have not publicly acknowledged a significant connection with either Abu Zubaydah or al-Qaeda, Sharbi – a leader in the short-lived Prisoners' Council of 2005, who was befriended by Guantánamo's warden, Col. Mike Bumgarner, and later became one of Guantánamo's most persistent hunger strikers – has had no such qualms.

Qahtani, a graduate in electrical engineering from King Saud University in Saudi Arabia, has, for example, had little to say about the allegations against him: that he traveled to Afghanistan after 9/11 "with the intent to fight the Northern Alliance and the American forces, whom he expected would soon be fighting in Afghanistan," and that he was part of a group at Abu Zubaydah's house who were provided with money to buy the components to make remote-controlled explosive devices. He refused to take part in his tribunal at Guantánamo (in 2004 or 2005), and spoke very little in April 2006, during the pretrial hearing for his first, aborted military commission, when he was concerned only to refuse the services of his military lawyer.

Barhoumi, who is accused of being a trainer for the bomb-making group, has gone so far as to strenuously deny the allegations against him. In his tribunal at Guantánamo, he admitted traveling to Afghanistan for military training in 1999, but pointed out that this was long before 9/11, and insisted that, having been shown a video of atrocities in Chechnya at a mosque in the UK, where he lived for two years, his intention was to train to fight in Chechnya. He explained that, after leaving Afghanistan, he traveled "from house to house," ending up at the safe house in Faisalabad where he was seized with Abu Zubaydah. He added, however, that he was only there for 10 days before the raid, and claimed that the allegations were the result of "hearsay" and of "people testifying against me." He claimed that his interrogators told him, "people are talking about you a lot," and suggested that, because he was arrested with Abu Zubaydah, "they dumped everything on me and said I was al-Qaeda also." At his pretrial hearing in 2006, he also refused legal representation, but was only concerned with showing the courtroom his hand, which was severely damaged after a land mine accident in Afghanistan, and complaining about the conditions of his imprisonment.

Ghassan al-Sharbi, on the other hand, who speaks fluent English and graduated in electrical engineering from Embry Riddle Aeronautical University in Arizona, is one of very few Guantánamo prisoners to have publicly declared membership of al-Qaeda. In his tribunal, he accepted all the allegations against him, which included claims that he received specialized training in the manufacture and use of remote-controlled explosive devices to detonate bombs against Afghan and U.S. forces, that he "was observed chatting and laughing like pals with Osama bin Laden," and that he was known in Guantánamo as the "electronic builder" and "Abu Zubaydah's right-hand man." On April 27, 2006, when he appeared at a pretrial hearing for his first, aborted military commission, he was equally open about his activities, telling the judge, "I came here to tell you I did what I did and I'm willing to pay the price," "Even if I spend hundreds of years in jail, that would be a matter of honor to me," and "I fought the United States, I'm going to make it short and easy for you guys: I'm proud of what I did."

While no one appears to have stepped forward to make much of the cases against the three men described above, the fourth man to be charged last week – Binyam Mohamed – is a much more difficult prospect for the U.S. administration, as his suffering at the hands of proxy torturers in Morocco, where he was sent by U.S. operatives in 2002 (and where he regularly had his penis cut with a razor), and his additional torture at the "Dark Prison," a secret, CIA-run prison near Kabul, have been well-chronicled since declassified accounts were first unveiled in the press in August 2005.

I have previously reported the story of Binyam Mohamed's torture and the fact that all the so-called "evidence" against him was extracted through torture – most recently here, after his representatives at Reprieve, the legal action charity, and solicitors at Leigh Day & Co. sued the British government, demanding that they turn over evidence that could help prove both his innocence and the extent of his torture. Astonishingly, the government's lawyers responded by stating that "the UK is under no obligation under international law to assist foreign courts and tribunals in assuring that torture evidence is not admitted" and added that "it is HM Government's position that … evidence held by the UK Government that U.S. and Moroccan authorities engaged in torture or rendition cannot be obtained" by the British lawyers who are trying to provide Mr. Mohamed with a fair trial.

Responding to the gauntlets thrown down by both the UK government's lawyers and the U.S. government, Clive Stafford Smith, Reprieve's Director, greeted the news that Binyam Mohamed was to face a trial by military commission by declaring, "I visited Binyam in Guantánamo just a week ago, and he is in a very bad state. Surely the least the British government can do is insist that no British resident be charged in a kangaroo court based on evidence tortured out of him with a razor blade. If Binyam's trial by military commission proceeds, all it will produce is evidence not of terrorism, but of torture, which will embarrass both the British and the American governments."

The last time Binyam Mohamed faced a military commission, he disrupted the entire proceedings, to his great advantage, by mocking both the process and the judge, humanizing himself in the eyes of the world's media, and ending by holding up a handwritten sign that cheekily declared that the commissions were "Con-missions" instead. It remains to be seen if – belittled by a further two years in Guantánamo, which has had a disturbing effect on his mental health – he would be able to come up with a similar display again. What his lawyers hope, however – as do his many supporters, who believe that, if there is any evidence against him, it should be tested through a fair trial in an recognized court of law – is that it will not come to this, and that the British government will indeed be persuaded to step up its remonstrations on his behalf, to avoid a torture scandal spanning the Atlantic.


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  • Andy Worthington is a historian based in London. He is the author of The Guantánamo Files, the first book to tell the stories of all the detainees in Guantanámo. He writes regularly on issues related to Guantánamo and the "War on Terror" on his Web site.

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