The Dying Days of the Guantánamo Trials

Since the last blowout at Guantánamo on December 8, when dozens of reporters and relatives of victims of the 9/11 attacks watched as Khalid Sheikh Mohammed (KSM) and his alleged co-conspirators tried – and failed – to plead guilty so that they could die martyr's deaths, few observers have witnessed the Commissions go through the motions in the Bush administration's last days, like a preprogrammed machine, unaware that major changes are afoot, or, less charitably, like a decapitated chicken on its last round of the farmyard.

"We serve the sitting president and will continue to do so until the president-elect is inaugurated, at which time we will implement whatever policies are enacted by the next president," Navy Cmdr. J.D. Gordon, a Pentagon spokesman, explained last month.

An ignoble history

The Military Commissions have rarely attracted the media attention that a novel, flagship program to try "terror suspects" should have attracted, even though the administration has persistently tried to sell Guantánamo as a place full of the world's toughest terrorists, rather than what it really is: a place where a few dozen members of a small, fanatical and deeply secretive terror network have been vastly outnumbered by Taliban foot soldiers, recruited to fight an inter-Muslim civil war in Afghanistan that began long before 9/11 and had no connection to al-Qaeda or the 9/11 attacks, or completely innocent men, sold for bounty payments by the United States' opportunistic allies in Afghanistan and Pakistan.

The rot was there from the beginning, as military defense lawyers, appointed by the government, realized to their horror that the Military Commissions were designed to secure convictions and to facilitate the use of evidence obtained through torture. The entire system should have died in June 2006, when the Supreme Court ruled it illegal, but when Congress revived the monster that fall, its newfound legitimacy was soon punctured when the first prisoner to face a trial, the Australian David Hicks, was repatriated in May 2007 following a plea bargain negotiated by Vice President Dick Cheney as a political favor to his ailing ally, Prime Minister John Howard.

Such cynicism has always been readily apparent when it comes to releasing prisoners from the general population, but for the first trial by Military Commission to be undermined in such a manner appeared to take hypocrisy to a new level, even though a trial, had it proceeded, would have been hard-pushed to present Hicks as a terrorist. Hyperbole of this kind was possible in the early days of the "War on Terror," when the "American Taliban" John Walker Lindh received a 20-year sentence, but as John Howard found to his chagrin, by 2007 the public was less willing to indulge such hyperbole. As I discovered while writing The Guantánamo Files, far from being caught on the battlefield, Hicks was actually betrayed by an Afghan van driver as he fled northern Afghanistan, trying in vain to hide his blue eyes and blond hair, and was then brutalized mercilessly in US hands.

In the last seven months, as the Bush administration sought to construct a "War on Terror" legacy that would not consist solely of hubris and ridicule, the pressure on the Commissions to press ahead with trials intensified. To a small degree, the ploy was successful. The arraignment and pretrial hearings of KSM et al. attracted widespread attention in June, September and December, and the trial of Salim Hamdan, a driver for Osama bin Laden, also drew a flurry of interest in the summer – although this was largely mitigated when Hamdan received an extraordinarily lenient sentence (freeing him by the end of the year), which effectively destroyed Guantánamo's rationale.

There was further bad news in September, when, as a result of his crusading pro-prosecution bias, the Commissions' legal adviser, Brig. Gen. Thomas Hartmann, was sacked after being disqualified by three military judges, and Lt. Col. Darrel Vandeveld, a prosecutor and a previously staunch supporter of the regime, resigned after seeking advice from a Jesuit peace activist, and left cursing the administration for its deliberate suppression of evidence vital to the defense in the case of the Afghan prisoner Mohamed Jawad. Although Jawad was accused of a grenade attack on a jeep containing US soldiers, it transpired that he was a juvenile when seized, was drugged at the time of the attack by the insurgents who had tricked him into being recruited, and had been tortured in Afghan custody until he confessed. One of Vandeveld's discoveries was that two other men, neither of whom is held at Guantánamo, had also confessed to the attack.

However, while these stories were widely reported – and there was also sporadic interest in the baleful saga of the Canadian Omar Khadr, the other juvenile facing a trial by Military Commission – the media as a whole (with the valiant exceptions of the Miami Herald's Carol Rosenberg, the Toronto Star's Michelle Shephard and Jane Sutton of Reuters) showed little appetite for covering the cases of the other 16 prisoners put forward for trial. This ability to find almost anything else more newsworthy was aptly demonstrated on the eve of the Presidential election when a prisoner named Ali Hamza al-Bahlul received a life sentence – ostensibly to be served in Guantánamo in total isolation – after a one-sided show trial in which, under the Commissions' deeply flawed rules, he had been allowed to mount no defense whatsoever.

Derailing the cases of Mohamed Jawad and Omar Khadr

Just two days after the last appearance of the KSM circus, when most of the reporters had gone home, Army Col. Stephen Henley, the judge in Mohamed Jawad's case, "indefinitely delayed" Jawad's trial, as Jane Sutton explained. The trial had been scheduled to begin on January 5, but Henley gave the prosecution an unspecified amount of time to work out how to appeal his earlier decision to exclude the confession obtained by the Afghan authorities shortly after Jawad's capture in Kabul in December 2002, because it was "obtained through death threats that constituted torture," and another confession, which he made to US interrogators the following day, because that too was the "fruit of that torture." Whether the prosecution can come up with any further evidence is doubtful. As Lt. Col. Vandeveld explained in November, Jawad's confession to Afghan officials was "among the most important evidence for his upcoming war crimes trial." Vandeveld added, "To me, the case is not only eviscerated, it is now impossible to prosecute with any credibility."

Two days later, on December 12, there was a further shock in the case of Omar Khadr. Although the US government has always claimed that Khadr was responsible for throwing a grenade that killed US Sgt. Christopher Speer during the firefight that led to Khadr's capture in Afghanistan in July 2002, it was revealed in November 2007 – just 36 hours before Khadr's trial was supposed to begin – that a previously undisclosed "US government employee," who was an eyewitness to the gunfight, had "potentially exculpatory evidence" proving that another man was alive at the time, and that this other man may have thrown the grenade.

At another pretrial hearing in March last year, Khadr's military defense lawyer, Lt. Cmdr. William Kuebler, revealed that the report of the circumstances that led to Khadr's capture, written by an officer identified only as "Lt. Col. W.," had been altered after the event to implicate Khadr, and on December 12 another witness, identified only as "Soldier No. 2," produced further evidence indicating that Khadr could not have thrown the grenade, explaining, as Michelle Shephard described it, that the teenager "was buried under rubble from a collapsed roof before he was captured."

In a motion submitted by Khadr's lawyers, the soldier explained that he "thought he was standing on a 'trap door' because the ground did not seem solid." He then "bent down to move the brush away to see what was beneath him and discovered that he was standing on a person; and that Mr. Khadr appeared to be 'acting dead.'" Speaking to reporters, Lt. Cmdr. Kuebler explained that photographs taken at the scene, which were not shown to observers of the trial proceedings, "show a pile of rubble from the collapsed roof, and then show the debris moved aside to reveal Khadr lying facedown in the dirt," which "make it abundantly clear Omar Khadr could not have thrown the hand grenade that killed 1st Sgt. Speer."

A new chief judge

As prosecutors vowed to press ahead with Khadr's trial on January 26, brushing off the defense team's perennial cry that juveniles should not be prosecuted for war crimes, and apparently secure that they have other evidence of Khadr making and planting roadside bombs in Afghanistan which will prove that he "knowingly" carried out crimes, the next example of the Commissions' blinkered view of reality came on December 15, when the Pentagon announced that Army Col. James Pohl, who had presided over the courts martial of several soldiers in the Abu Ghraib scandal, had been appointed as the new chief judge.

Pohl replaced Marine Col. Ralph Kohlmann (whose retirement plans had enabled KSM to mock him for his lack of commitment in September), and had already established himself as an independent-minded judge at Guantánamo. As Carol Rosenberg explained, in March, he "sternly informed" prosecutors in the case of Ahmed al-Darbi, a Saudi seized in Azerbaijan and accused of "plotting a never-realized attack on an unnamed ship in the Strait of Hormuz," that defense lawyers "should have easy access to their clients." Lawyers for the 33-year old father of two maintain that al-Darbi was tortured in US custody and that the government's allegations are reliant on 119 self-incriminating statements.

Col. Pohl also refused to endorse a request from prison commanders to approve violent "Forced Cell Extractions" when prisoners refused to come to the courtroom, and on his first day in his new job, at a pretrial hearing for al-Darbi, allowed the Saudi to make an appeal to Barack Obama. "Waving a copy of an American Civil Liberties Union poster with a pensive Obama and his campaign's closure pledge on it," as Rosenberg explained, al-Darbi said, "I hope this location will be closed as he promised. He will earn back the legitimacy the United States has lost as a world leader."

This was the last hearing before the eve of Barack Obama's inauguration, when final pretrial hearings are supposed to begin in Omar Khadr's case, and a mental competency hearing is scheduled for alleged 9/11 co-conspirator Ramzi bin al-Shibh, but although Col. Pohl acknowledged that he was "aware that on Jan. 20 there will be a new commander-in-chief, which may or may not impact on these proceedings," he advised everyone connected with the Commissions to stay focused "unless and until a competent authority tells us not to."

While this was a fair warning, Col. Pohl's awareness of political realities was not reflected elsewhere in the Pentagon, nor, I suspect, in the Office of the Vice President, where, as I explained in my article in October that also looked at the sacking of Brig. Gen. Hartmann and the resignation of Lt. Col. Vandeveld, the architects of the Commissions – Dick Cheney and his chief of staff David Addington – seem determined to continue playing out their deranged fantasies until the moment they leave office.

A new prisoner is charged: the story of Tarek El-Sawah

On December 16, just as three Bosnian Algerians flew home from Guantánamo, after Judge Richard Leon, a Bush appointee, threw their cases out of his habeas court for lack of evidence, the Pentagon announced that another Bosnian prisoner, Tarek El-Sawah (aka Tariq al-Sawah), a 51-year old originally from Egypt, was the 27^th prisoner to be put forward for trial by Military Commission. The Pentagon also reinstated the charges (pdf) against the Sudanese prisoner Noor Uthman Muhammed, allegedly the deputy emir of the Khaldan training camp, which had been dropped in October.

In El-Sawah's charge sheet (pdf), in which he was charged with conspiracy and providing material support for terrorism, it was alleged that, between October 2000 and November 2001, he had trained at al-Farouq (the main training camp for Arabs in the years before the 9/11 attacks), had taught "the fundamentals of how to use explosives to members of al-Qaeda, the Taliban and others," and had "developed and successfully tested a remote controlled limpet mine for use against US warships" at the Tarnak farms training camp, which he had undertaken "at the direction of a member of al-Qaeda's Shura Council." It was also alleged that he had written a 400-page manual on bomb-making, and had fought against US and coalition forces in the Tora Bora mountains, until he was wounded and captured.

How much truth there is to these charges is difficult to ascertain. El-Sawah was certainly a militant, but in 2004, at his only appearance before a tribunal at Guantánamo, there was no mention of the bomb-making manual or the limpet mine, and he insisted that both his military commitment – and the training he briefly gave to others in August 2001 – was directed exclusively at the Northern Alliance.

El-Sawah explained that he had traveled to Bosnia as an aid worker in 1992, had married a Bosnian woman and had only gone to Afghanistan to see if it was suitable place to take his family. Once there, however, he clearly succumbed to the most virulent Taliban propaganda against Ahmed Shah Massoud, the leader of the Northern Alliance, who was assassinated by al-Qaeda agents on September 9, 2001. He told his tribunal, "One time in a jihad, Massoud killed about 10,000 Muslims in an hour." Reiterating that it was his intention solely to support those who were being oppressed by the Northern Alliance, he said, "There are no rules in the United States to prevent it if you want to fight for religion. There are no rules to direct me not to defend people." He also pointed out that he went to Afghanistan to fight the Northern Alliance before 9/11, when it was no business of the Americans, and asked, "If Massoud and Dostum are American allies, they were not an alliance before September 11^th, were they?"

El-Sawah also denied an allegation that he had admitted being a member of al-Qaeda, denied an allegation that he met Osama bin Laden, saying that he saw him once at a meeting of about 250 people, but had no opportunity to actually meet him, and also denied an allegation that he had engaged in hostilities against the United States. In a comment that cut to the heart of what was essentially a proxy war, fought by Afghans with US air support, he said, "There was no fighting against Americans. If there were any American soldiers saying they were fighting in Afghanistan, bring them here to me and show the evidence."

He also explained that he was sold for money, telling his tribunal, "because the Americans offered $5,000 to anyone who captured us, they [the Northern Alliance] were fighting us and they kept us alive to get the $5,000," and gave a poignant description of his departure from Jalalabad into the Tora Bora mountains, in which he emphasized that the war in Afghanistan and the fall of the Taliban had triggered an exodus of all kinds of people, not just al-Qaeda and Taliban fighters. "We left everything," he said. "We were moving through mountains and caves; there were hundreds of families, children, women and people were climbing through the mountains. What were we to do? Some people were escaping from other fronts, near Jalalabad and Kabul. There were too many people there."

Charges referred in the case of torture victim Abdul Rahim al-Nashiri

The administration's final gesture, before the Christmas break, was for Susan Crawford, the Commissions' "Convening Authority" – and a close friend of both Dick Cheney and David Addington – to confirm the charges that were filed last July against Abdul Rahim al-Nashiri. A Saudi, and one of 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 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.

Al-Nashiri faces the death penalty if convicted, although his trial, should it proceed, will undoubtedly be complicated by the fact that he is one of three "high-value detainees" whom CIA director Michael Hayden admitted last February had been subjected to waterboarding in secret CIA custody. In his tribunal at Guantánamo in 2007, al-Nashiri 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."

Charges dropped against Abdul Ghani, a minor Afghan insurgent

On the same day that the charges against al-Nashiri were confirmed, there was better news for Abdul Ghani, an Afghan prisoner put forward for trial at the end of July. Without providing any explanation, Susan Crawford dismissed the charges "without prejudice," which meant, as the Pentagon explained, "that the government has the option of charging Ghani at a later date," but it would surely be better for the 36-year old to sent back to Afghanistan instead, where the Afghan authorities can work out if he actually constitutes a threat.

At best a minor Afghan insurgent, Ghani was charged with firing rockets at US forces, planting "land mines and other explosive devices on more than one occasion for use against US 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 US forces and bases." As I wrote at the time, however, "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."

Time for change

With less than two weeks until Dick Cheney and David Addington are obliged to leave the White House, when a new broom will also no doubt sweep the corridors of the Pentagon, it remains possible that the architects of the Commissions will indulge in a final round of last-minute tinkering, hoping that their failed experiment will live on, but for the rest of us, Barack Obama's inauguration cannot come soon enough, nor, indeed, can the fulfillment of a promise that he made in August 2007:

"As President, I will close Guantánamo, reject the Military Commissions Act, and adhere to the Geneva Conventions. Our Constitution and our Uniform Code of Military Justice provide a framework for dealing with the terrorists … The separation of powers works. Our Constitution works. We will again set an example to the world that the law is not subject to the whims of stubborn rulers, and that justice is not arbitrary."