Latest Gitmo Charges Questionable

The U.S. Department of Defense announced Monday that Ahmed Khalfan Ghailani, a Tanzanian captured after a gunfight in Gujrat, Pakistan, in July 2004, would be the fifteenth Guantánamo prisoner to be tried by military commission, in connection with his alleged involvement in the bombings of the U.S. embassies in Kenya and Tanzania on Aug. 7, 1998.

Specifically, Ghailani is charged with "murder in violation of the Law of War, murder of protected persons, attacking civilians, attacking civilian objects, intentionally causing serious bodily injury, destruction of property in violation of the Law of War and terrorism" – plus conspiracy to commit all the preceding offenses – for his alleged role in securing and transporting material used in the Tanzanian bomb, and for helping to purchase the truck that was used in the attack. He is also charged with "providing material support to terrorism," based on allegations that, after the bombing, he fled to Afghanistan, where he continued working for al-Qaeda "as a document forger, physical trainer at an al-Qaeda training camp, and as a bodyguard for Osama bin Laden."

Ghailani is the sixth of the 14 so-called "high-value detainees" – those held in secret, CIA-run prisons, who were transferred to Guantánamo in September 2006 – to be put forward for trial by military commission. He joins Khalid Sheikh Mohammed, Ramzi bin al-Shibh, Mustafa al-Hawsawi, Ali Abdul Aziz Ali, and Walid bin Attash (plus Mohammed al-Qahtani, a notorious victim of torture in Guantánamo), who were put forward for trial in February in connection with the 9/11 attacks.

The novel "War on Terror" trials, conceived by Dick Cheney and his advisers in November 2001, have yet to secure a conviction (the closest they came was the plea bargain negotiated with the Australian David Hicks last year, who returned home to serve just seven months in prison) and have been plagued by controversy since their inception. Damned by their own military defense lawyers, derailed by their own government-appointed judges, dismissed by the Supreme Court and then resuscitated by a somnambulant Congress, they are currently limping toward trials in the cases of the Canadian Omar Khadr, who was just 15 years old when he was captured and whose alleged murder of a U.S. soldier is seriously contested by his legal team, and Salim Hamdan, a Yemeni who was one of Osama bin Laden's drivers.

The commissions have stumbled at the arraignment phase in two other cases, those of Mohamed Jawad, an Afghan who was just 16 years old when he allegedly threw a grenade at a vehicle carrying two U.S. soldiers and an Afghan translator, and Ahmed al-Darbi, a Saudi who was seized in Azerbaijan and is accused of plotting to attack shipping lanes in the Middle East.

More significantly, the commissions appear to be fatally contaminated by allegations of torture, raising doubts that they can secure a single "clean" conviction that will be regarded as legitimate anywhere beyond the administration itself and its dwindling crowd of cheerleaders.

In this, the case of Ahmed Khalfan Ghailani appears to be no exception. Ghailani did not allege, during his military tribunal last year, that he was tortured (unlike Khalid Sheikh Mohammed, Abu Zubaydah and Abdul Rahim al-Nashiri, whose torture by waterboarding was recently admitted by CIA director Michael Hayden), but during my research for The Guantánamo Files: The Stories of the 774 Detainees in America's Illegal Prison, I discovered a piece of information that indicated that, whether under duress or by some other method, he had made a false allegation against one of the prisoners at Guantánamo.

One of the more disturbing aspects of the gathering of evidence used against the Guantánamo prisoners is the accumulation of allegations from the initial Combatant Status Review Tribunals, convened from July 2004 to March 2005 to assess whether the prisoners had been correctly designated as "enemy combatants," through successive rounds of annual Administrative Review Boards, convened to assess whether they still constitute a threat to the United States or still have ongoing intelligence value.

In tracing the accumulation of allegations, an enormous number of claims are attributed to "a senior al-Qaeda operative" or "a senior al-Qaeda lieutenant." With no names given, it has been impossible to establish the source of these claims, although they are frequently so at odds with a previously established chronology of the prisoner's actions – placing them at training camps and in guest houses when they were not even in Afghanistan, for example – that it's readily apparent that many, if not most, of these allegations were produced under duress, probably when supposed "high-value detainees" were being shown the "family album" of prisoners that was used from the earliest days of the U.S.-run prisons in Afghanistan, in late December 2001.

On one occasion only I discovered that one of these "al-Qaeda" sources had been named and was none other than Ahmed Khalfan Ghailani. As I explained in Chapter 20 of The Guantánamo Files, "The Yemeni Mohammed al-Hanashi … admitted to his tribunal in 2004 that he arrived in Afghanistan eight or nine months before 9/11, and that he fought with the Taliban. By the time of his review in 2005, however, new allegations had been added, including the claim that Ahmed Khalfan Ghailani 'identified him as having been at the al-Farouq camp [the main training camp for Arabs, associated in the years before 9/11 with Osama bin Laden] in 1998-99 prior to moving on to the front lines in Kabul.' In other words, although al-Hanashi admitted traveling to Afghanistan to serve as a foot soldier for the Taliban, a man who was held in extremely dubious circumstances in another part of the world was shown his photo and came up with a story about seeing him two or three years before his arrival in Afghanistan, which would, henceforth, be regarded as evidence against him."

It will, of course, be some time before Ghailani's case comes to trial, as Col. Steve David, the commissions' chief defense lawyer, is already struggling to find enough military lawyers to represent those who have already been charged, but it's clear from just this one example, which accidentally slipped through the net, that the quality of Ghailani's confessions will be contentious, and that questions will be raised about the circumstances in which they were gathered.

The great irony in his case is that the main evidence against him came not from the two years and two months that he was held in secret CIA custody, but from the testimony of a number of other men, including Mohamed al-Owhali, Wadih El-Hage, Mohammed Sadiq Odeh, and Khalfan Khamis Mohamed, who, although captured abroad and "rendered" to U.S. territory in 1998 and 1999, were transferred to face a criminal trial, rather than being held in the ad-hoc system of secret prisons run by the CIA that developed after 9/11. They were subsequently interrogated, charged, successfully prosecuted for their involvement in the African embassy bombings in October 2001, and sentenced to life imprisonment, without the use of any of the torture techniques (euphemistically known as "enhanced interrogation techniques") that the Bush administration introduced in the wake of the 9/11 attacks.

Although there are other complications in the cases of the African embassy bombers – not least the role of double agent Ali Mohammed and the lack of communication between the CIA and the FBI – the fact that successful prosecutions could take place without the use of torture should have sent a clear message to the Bush administration, just weeks before Dick Cheney stealthily authorized the president to capture suspected terrorists anywhere in the world, designate them "enemy combatants," hold them without charge or trial and, if required, try them before military commissions, that there were other ways to engage a terrorist threat without resorting to torture, imprisonment without charge, and dubious show trials.