This image of Khalid Sheikh Mohammed was taken in July 2009 under an agreement with Guantanamo prison camp staff that lets Red Cross delegates photograph detainees and send photos to family members.

The eyes of the world were on Guantánamo, as Khalid Sheikh Mohammed and four other men accused of planning and facilitating the terrorist attacks of September 11, 2001 — Ramzi bin al-Shibh, Ali Abd al-Aziz Ali, Mustafa Ahmed al-Hawsawi and Walid bin Attash — appeared in a courtroom for the first time since December 2008. All were dressed in white, apparently at the insistence of the authorities at Guantánamo, and most observers made a point of noting that Mohammed’s long gray beard was streaked red with henna.

For the Obama administration and the Pentagon, the five men’s appearance — for their arraignment prior to their planned trial by military commission — was supposed to show that the commissions are a competent and legitimate alternative to the federal court trial that the Obama administration announced for the men in November 2009, but then abandoned after caving in to pressure from Republicans. The five defendants face 2,976 counts of murder — one for each of the victims of the 9/11 attacks — as well as charges of terrorism, hijacking, conspiracy and destruction of property, and the prosecution is seeking the death penalty.

Unfortunately for the administration, the omens were not good. The military commissions have been condemned as an inadequate trial system ever since the Bush administration first resurrected them in November 2001, intending, in the heat of post-9/11 vengeance, to use them to swiftly try and execute those it regarded as terrorists. However, after long delays and chaotic hearings, this first reincarnation of the commissions was struck down as illegal by the Supreme Court in June 2006. The commissions were then revived by Congress a few months later, and were then tweaked and revived by President Obama in the summer of 2009, despite criticism from legal experts.

However, in all these years, just seven cases have been decided. Under Bush, there was a plea deal for the Australian David Hicks; a short sentence for Salim Hamdan, who drove a car for Osama bin Laden; and a life sentence for Ali Hamza al-Bahlul, who made a video for al-Qaeda, and refused to participate in his trial. Since Obama revived the commissions another four cases have been decided by plea deal — those of Ibrahim al-Qosi, a cook; Omar Khadr, a child at the time of his capture; Noor Uthman Muhammed, a training camp instructor; and Majid Khan, an alleged accomplice of Khalid Sheikh Mohammed.

Another case — that of Abd al-Rahim al-Nashiri, the alleged bomber of the USS Cole — is also proceeding to trial, but it is fair to say that the 9/11 trial is the barometer of whether or not the commissions are credible, or whether they are a second-tier judicial system, and the proceedings are little better than show trials.

On that basis, Saturday’s arraignment rather spectacularly failed to fulfil the administration’s hopes. As the Guardian noted, the hearing “descended into chaos,” as the defendants “refused to acknowledge the judge and their lawyers repeatedly challenged the legitimacy of the court.”

At the last appearance of the five men in 2008, Khalid Sheikh Mohammed had tried to plead guilty, and to become a martyr by being executed, but on Saturday he was more in the mood for quiet resistance, undermining the proceedings by refusing to acknowledge the judge. As the Washington Post described it, “The normally loquacious Mohammed refused to speak publicly throughout Saturday’s hearing, a stance that was largely adopted by all the other defendants, who tend to follow his lead.”

Also noteworthy was the behavior of Walid bin Attash, an amputee, who was brought to the courtroom strapped into a restraining chair, after some kind of altercation outside, and only had his restraints removed when he promised to behave, and the behavior of Ramzi bin al-Shibh, whose mental health has long been called into question by his lawyers.

At one point bin al-Shibh and Ali Abd al-Aziz Ali interrupted the proceedings by praying, at at another point bin al-Shibh shouted out, comparing Guantánamo to the prisons of Muammar Gaddafi, the former dictator of Syria. “Era of Gaddafi is over but you have Gaddafi in [Guantánamo] camp,” he said, adding, “Maybe they are going to kill us and say that we are committing suicide.” This was a sign, perhaps, that he had heard of the dubious circumstances in which five prisoners died at Guantánamo: three in June 2006, and two others in 2007 and 2009, and had even, perhaps, heard about the dubious death, in a Libyan prison in May 2009, of Ibn al-Shaykh al-Libi, the emir of a training camp in Afghanistan who had also been held in CIA “black sites,” and had been rendered to Egypt, where, under torture, he had falsely confessed that there were connections between al-Qaeda and Saddam Hussein, which, nevertheless, were used to justify the invasion of Iraq in March 2003.

The arraignment took 13 hours to complete, although that was largely because of the men’s defense lawyers, who persistently attempted to question the credibility of the commissions, and made the most of their opportunity to question the judge’s impartiality, through the process known as voir dire. While this was happening, the defendants were mostly silent, and passed around the latest copy of the Economist, which may or may not have provided a boost to the London-based weekly magazine’s appeal. According to the Washington Post, throughout the hearing Khalid Sheikh Mohammed “whispered messages to his comrades, and they chatted and joked with one another during a short recess.”

By the end of the arraignment, none of the defendants had entered a plea, and the judge, Army Col. James Pohl, adjourned proceedings until June 12, and tentatively set a trial date of May 2013, although, as the Guardian explained, he “acknowledged that there are likely to be more delays.” Throughout the day, he had tried to maintain his composure, but occasionally appeared rattled. When it became clear that the accused were going to refuse to participate in the proceedings, he stated that a plea of not guilty would eventually be entered on their behalf, adding, “One cannot choose not to participate and frustrate the normal course of business,” and at another point he asked in exasperation, “Why is this so hard?”

Leading the defense’s complaints on Saturday, Khalid Sheikh Mohammed’s lawyer, David Nevin, told the court that “the world is watching” the proceedings, and when the accused removed their headphones, through which they were receiving a translation of what Judge Pohl was saying, he explained that, in Mohammed’s case, “The reason he’s not putting the headphones in his ears is because of the torture imposed on him.” Nevin then “asked to be allowed to elaborate,” as the Guardian described it, but Judge Pohl refused.

Nevin’s attempts to raise the question of the men’s torture in secret CIA prisons for up to three and a half years before their transfer to Guantánamo in September 2006 was the most explicit attempt to allow discussion of how the men have been treated, although as was noted in the Daily Beast by Terry McDermott (the author, with Josh Meyer, of The Hunt for KSM: Inside the Pursuit and Takedown of the Real 9/11 Mastermind, Khalid Sheikh Mohammed), Judge Pohl deflected almost all the defense’s arguments, telling the lawyers that there would be time for them to raise whatever they thought was important at the next hearing in June. As McDermott explained, “He indicated he would eventually allow defense lawyers to argue every issue they wanted.”

In his perceptive article, McDermott noted that, after Walid bin Attash’s attorney, Cheryl Borman, had told Judge Pohl that her client had been “repeatedly beaten by guards at Guantánamo,” he was obliged to point out that the treatment of the prisoners was something over which he “had little or no control,” although he stated that he “would investigate with the relevant authorities.” For McDermott, his “relative powerlessness over events beyond the courtroom” provided a vivid demonstration of the “central contradiction” of the commissions, which he described as “the attempt to conduct trials granting nearly all rights enjoyed in US courts when the defendants are prisoners in one of the most heavily controlled prisons in the world — held, usually in solitary confinement, under extreme security with almost all access to the outside world eliminated.”

As McDermott added:

Their lawyers are thousands of miles away and require special flights just to get to Guantánamo. Even when there, the lawyers are unable to talk with their clients about anything the American military decides is classified. This includes all issues having to do with the prisoners’ treatment. Thus, defense lawyers can’t talk in court about the specifics of their clients’ complaints.

Just before the hearing began, the ACLU submitted a motion (PDF) calling for the judge “to reject the government’s attempts to censor any statements by defendants in the 9/11 military commission proceedings about their detention and treatment in US custody.”

As the ACLU explained:

[T]he government has asked or will ask this Commission to issue a protective order accepting the government’s claim that any statements made by the defendants concerning their “exposure” to the Central Intelligence Agency’s (“CIA”) detention and interrogation program are presumptively classified and must be kept from the public. The government has also asked or will ask the Commission to accept its assertion that defendants’ statements concerning their personal knowledge and experience of their imprisonment and treatment in Department of Defense (“DOD”) custody are classified and must be suppressed.

The ACLU also asked the judge not to accept the government’s insistence that there must be “a 40-second delay in the audio feed the government makes available to the public, media, and representatives of non-governmental organizations who observe the tribunal,” in order to “permit a courtroom security official to cut off the audio feed whenever the defendants describe their detention and interrogation in US custody.”

The 40-second delay was only used briefly on one occasion on Saturday, apparently when Walid bin Attash said something that prosecutors wanted suppressed, but how secrets are dealt with is central to the 9/11 trial and its claim to credibility, and it remains to be seen whether Judge Pohl will genuinely acknowledge the tensions between the absolute secrecy surrounding the Bush administration’s torture program and the need for something that resembles a fair hearing in the men’s trial by military commission.

What is clear, at present, is that, in the five years and eight months since Khalid Sheikh Mohammed, his co-defendants and nine other “high-value detainees” arrived at Guantánamo from the CIA’s secret prisons, the only words that any of them have uttered that have been made available to the public are the words they said at their pre-trial hearings — in the cases of KSM and his co-accused, what they said in June, September and December 2008, and on Saturday. Everything else — every single word that has been exchanged between these 14 men and their lawyers — is presumptively classified.

This not unusual in the sense that every word exchanged between the other prisoners in Guantánamo and their lawyers is also presumptively classified, but in the cases of the other prisoners, at least parts of these exchanges have been unclassified after being reviewed by a team of Pentagon censors known as the privilege review team. In the cases of the “high-value detainees,” however, every single word remains classified.

The only possible reason for this is to prevent any discussion of of the torture to which these men were subjected in CIA “black sites” from leaking out of Guantánamo.

This is something that was noted last week in an article for Salon by the commissions’ former chief prosecutor, Col. Morris Davis, who resigned in October 2007, when he was placed in a chain of command under William J. Haynes II, the Pentagon’s General Counsel, who insisted that information derived through the use of torture would be used in the commissions.

Dismissing the administration’s spurious claims that military commissions are necessary because soldiers on a battlefield cannot spend their time worrying about reading rights to prisoners in wartime, Col. Davis stated:

[T]he reason the apologists want a second-rate military commission option is because of what we did to the detainees, not because of what the detainees did to us. This is not about the exigencies of the battlefield and the problems our soldiers face trying to fight a war; this is about torture, coercion, rendition and a decade or more in confinement without an opportunity to confront the evidence — abuses that would have us up in arms if done to an American citizen by some other country — that make the tarnished military commissions uniquely suited to try and accommodate the small category of cases where we crossed over to the dark side.

And that, in short, is the key problem with the commissions that dare not speak its name, and that Judge Pohl will have to decide whether or not to tackle — whether the search for justice is even possible when those who are supposed to be subjected to it were also the victims of America’s journey to “the dark side.”

Andy Worthington, a regular contributor to The Public Record, is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison and the definitive Guantánamo prisoner list, published in March 2009. He maintains a blog at andyworthington.co.uk.

Jose Rodriguez, former Director of the CIA's National Clandestine Service

Law-abiding US citizens have been appalled that Jose Rodriguez, the director of the CIA’s National Clandestine Service until his retirement in 2007, was invited onto CBS’s “60 Minutes” program last weekend to promote his book Hard Measures: How Aggressive CIA Actions After 9/11 Saved American Lives, in which he defends the use of torture on “high-value detainees” captured in the Bush administration’s “war on terror,” even though that was — and is — illegal under US and international law.

Rodriguez joins an elite club of war criminals — including George W. Bush, Dick Cheney and Donald Rumsfeld — who, instead of being prosecuted for using torture, or authorizing its use, have, instead, been allowed to write books, go on book tours and appear on mainstream TV to attempt to justify their unjustifiable actions.

All claim to be protected by the “golden shield” offered by their inside man, John Yoo, part of a group of lawyers who aggressively pushed the lawlessness of the “war on terror.” Abusing his position as a lawyer in the Justice Department’s Office of Legal Counsel, whose mandate is to provide impartial legal advice to the executive branch, Yoo instead attempted to redefine torture and approved its use — including the use of waterboarding, an ancient torture technique and a form of controlled drowning — on an alleged “high-value detainee,” Abu Zubaydah, in two memos, dated August 1, 2002, that will forever be known as the “torture memos.”

Unfortunately, for those who abhor the use of torture and respect the rule of law, President Obama refused to allow Yoo — and his boss, Jay S. Bybee — to be punished. A four-year internal ethics investigation concluded in January 2010 that Yoo and Bybee had been guilty of “professional misconduct,” which would have led to professional sanctions, but a senior DoJ fixer, David Margolis, was allowed — or encouraged — to override those conclusions, stating instead that both men had, understandably, been under great pressure following the 9/11 attacks, and had only exercised “poor judgment,” which was the equivalent of nothing more than a slap on the wrist.

No one bothered mentioning that Article 2.2 of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, to which the US became a signatory under Ronald Reagan, declares: “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.”

And so, last Sunday, Jose Rodriguez was allowed to undertake his own redefinition of torture, essentially unchallenged, and on mainstream TV. With a disturbingly macho presentation that left Charles Pierce of Esquire “pretty convinced that Rodriguez is both a sociopath and a maniac,” as well as a war criminal, he brushed off criticism of the use of torture by saying, “We made some al-Qaeda with American blood on their hands uncomfortable for a few days, but we did the right thing for the right reason. The right reason to protect the homeland and to protect American lives.”

As Amy Davidson noted in the New Yorker, he also “bragged about its use in proving the manhood of the torturer,” stating, “We needed to get everybody in government to put their big boy pants on and provide the authorities that we needed,” and “talked as if torture were an expression of strength, rather than momentary domination masking the most abject moral and practical weakness.” For Glenn Greenwald, the reference to “big boy pants” exposed “a whole new level of psychosexual creepiness.”

On specific techniques, Rodriguez defended the use of waterboarding by saying, of Khalid Sheikh Mohammed, who was subjected to waterboarding 183 times, “I don’t know what kind of man it takes to cut the throat of someone in front of a camera like that [a reference to KSM's unproved confession that he personally killed US journalist Daniel Pearl], but I can tell you this is probably someone who didn’t give a rat’s ass about having water poured on his face.”

He also defended the use of physical violence and nudity by pointing out that “[t]he objective is to let him [the detainee] know there’s a new sheriff in town and he better pay attention,” compared sleep deprivation to “jet lag,” and, reflecting on the use of “stress positions” over many hours, said, “I was thinking about this the other day. The objective was to induce muscle fatigue, and most people who work out do a lot more fatiguing of the muscles.”

At another point in the interview, Rodriguez also made reference to the psychologists — including James Mitchell and Bruce Jessen — who had worked on the US military’s program for using torture to train US personnel to resist interrogation if captured by a hostile enemy, which was reverse engineered and provided the basis of the torture program in the “war on terror.” Their particular contribution was to stress that detainees must be broken down to a state of “learned helplessness” (a concept conceived by US psychologist Martin Seligman in the 1960s), in which all resistance is futile, and the detainee becomes completely dependant on his interrogators. Speaking of this, Rodriguez stated, “This program was about instilling a sense of hopelessness and despair on the terrorist, on the detainee, so that he would conclude on his own that he was better off cooperating with us.”

To be spouting all of the above on mainstream TV without, essentially, any comeback from the host, Lesley Stahl, or from those who should be enforcing America’s obligations to prosecute torturers, is depressing enough, but it was not all that was wrong. Rodriguez also spoke openly of the crime for which he is most generally known — the destruction of 92 videotapes that contained the “interrogations” in Thailand of Abu Zubaydah and Abd al-Rahim al-Nashiri, another “high-value detainee” who was waterboarded. As Glenn Greenwald explained last week:

At the time the destruction order was issued, numerous federal courts — as well as the 9/11 Commission — had ordered the US Government to preserve and disclose all evidence relating to interrogations of Al-Qaeda and 9/11 suspects. Purposely destroying evidence relevant to legal proceedings is called “obstruction of justice.” Destroying evidence which courts and binding tribunals (such as the 9/11 Commission) have ordered to be preserved is called “contempt of court.” There are many people who have been harshly punished, including some sitting right now in prison, for committing those crimes in far less flagrant ways than was done here. In fact, so glaring was the lawbreaking that the co-Chairmen of the 9/11 Commission — the mild-mannered, consummate establishmentarians Lee Hamilton and Thomas Kean — wrote a New York Times Op-Ed pointedly accusing the CIA of “obstruction” (“Those who knew about those videotapes — and did not tell us about them — obstructed our investigation”).

As with John Yoo and Jay S. Bybee, Rodriguez was never punished. An investigation into the destruction of the videotapes began under George W. Bush, and continued under Obama, but in November 2010 the DoJ announced that the investigation would be closed without any charges being filed. As Greenwald explained, Judge Alvin Hellerstein, who had ordered the CIA to preserve and produce the tapes, “refused even to hold the CIA in contempt for deliberately disregarding his own order.” Instead, he “reasoned that punishment for the CIA was unnecessary because, as he put it, new rules issued by the CIA ‘should lead to greater accountability within the agency and prevent another episode like the videotapes’ destruction.’”

However, while Rodriguez — like John Yoo, Jay S. Bybee and senior Bush administration officials, up to and including the President — continues to get away with his crimes, it is uncertain if, overall, the apologists for torture are winning. For them to succeed in persuading enough ordinary Americans that the law doesn’t actually apply to the US president, or anyone working for him, they also need to establish that all this torturing kept America safe, and on this front, despite their protestations over the years, they have no proof that torture worked.

In his interview, Rodriguez wheeled out the tired old lies about torture leading to the capture of “high-value detainees.” In a moment of courage, Lesley Stahl mentioned well-established claims that Abu Zubaydah’s torture had led operatives on countless wild goose chases, to which Rodriguez replied, “Bullshit. He gave us a road map that allowed us to capture a bunch of Al-Qaeda senior leaders.” In contrast, of course, former FBI interrogator Ali Soufan pointed out last year that torture did not yield important leads, and that, for example, information from Abu Zubaydeh pointing to Khalid Sheikh Muhammad’s central role in the 9/11 attacks came before the CIA’s torturers took over his interrogations.

Soufan also pointed out the difference between torturers and skilled interrogators, which CNN described as follows:

“There is a difference between compliance and cooperation,” he said. Compliance can result from torture — a detainee will do anything to make the rough treatment end. But real cooperation, says Soufan, comes from engaging the detainee after learning everything possible about them.

Torture’s apologists always want to deny the importance of skilled interrogators, who conduct extensive research on their subjects and often spend a long time building up a rapport with them. Instead, they permanently seek to reinforce the macho idiocy of their preferred approach, which is driven more by vengeance and bloodlust than anything else.

In Rodriguez’s case, he also resorted to claims that torture had led to the capture of Osama bin Laden, telling Dana Priest of the Washington Post last week, “I am certain, beyond any doubt, that these techniques, approved at the highest levels of the US government, certified by the Department of Justice, and briefed to and supported by bipartisan leadership of congressional intelligence oversight committees, shielded the people of the United States from harm and led to the capture and killing of Osama bin Laden.”

In response, Sen. Dianne Feinstein (D-Calif.), the chair of the Senate Intelligence Committee, and Sen. Carl Levin (D-Mich.), the chair of the Senate Armed Services Committee, issued a joint statement (PDF) condemning the remarks made by Rodriguez and others — including former Attorney General Michael Mukasey and former CIA director Michael Hayden — who had leapt on the bandwagon as the anniversary of bin Laden’s death approached, calling them “inconsistent with CIA records,” and “misguided and misinformed,” and expressing their disappointment that “Mr. Rodriguez and others, who left government positions prior to the OBL operation and are not privy to all of the intelligence that led to the raid, continue to insist that the CIA’s so-called ‘enhanced interrogation techniques’ used many years ago were a central component of our success.”

The statement, as the New York Times explained, “rebutted various claims that critical information about bin Laden’s courier” came from Khalid Sheikh Mohammed or from Abu Faraj al-Libi, another “high-value detainee,” seized in Pakistan in 2005, and held at Guantánamo, like Khalid Sheikh Mohammed and 13 other “high-value detainees,” since September 2006. In addition, the Times noted that the statement “rejected claims that tough treatment drew valuable information about bin Laden’s courier from a third detainee, unidentified in the statement,” but elsewhere identified as Hassan Ghul, another “high-value detainee,” seized in Iraq in 2004, who was never held at Guantánamo. The statement noted that, “While this third detainee did provide relevant information, he did so the day before he was interrogated by the CIA using their coercive interrogation techniques.”

“Instead,” the Times explained, Sens. Feinstein and Levin stated, without elaborating, that “the CIA learned of the existence of the courier, his true name and location through means unrelated to the CIA detention and interrogation program.”

This is significant, but what is needed now is for the Senate Select Committee on Intelligence to complete its comprehensive review of the CIA’s former detention and interrogation program, and publish it. As the statement also explained, “Committee staff have reviewed more than 6 million pages of records and the Committee’s final report, which we expect to exceed 5000 pages, will provide a detailed, factual description of how interrogation techniques were used, the conditions under which detainees were held, and the intelligence that was — or wasn’t — gained from the program.”

As Dan Froomkin explained in the Huffington Post, the investigation by Democrats, which has taken nearly three years, and has involved Republican lawmakers refusing to take part, “concludes that records from the Bush administration fail to support claims that torture was effective in stopping any terrorist attack,” or in leading to the discovery and killing of Osama bin Laden last year.

While people like Jose Rodriguez remain free to peddle their lies and distortions about torture, and to profit from it, America’s name not only continues to be tarnished, but the American public also continue to be shamefully misled. The long-awaited report into the CIA’s torture program should be published as soon as possible, to let people know what really happened, and hopefully to play a part in tearing down the “golden shield” that has so far protected the Bush administration’s torturers from prosecution.

Andy Worthington, a regular contributor to The Public Record, is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison and the definitive Guantánamo prisoner list, published in March 2009. He maintains a blog at andyworthington.co.uk.

Image: Jared Rodriguez / t r u t h o u t; Adapted: art makes me smile, The U.S. Army

On Monday, the Center for Policy and Research at Seton Hall University School of Law in New Jersey released a new report, “National Security Deserves Better: ‘Odd’ Recidivism Numbers Undermine the Guantánamo Policy Debate” (PDF), which analyzes the fundamental problems with the claims made by the Pentagon and the Director of National Intelligence (DNI) regarding the numbers of alleged “recidivists” freed from Guantánamo — in other words, those who, in the words of the DNI, have been involved in “planning terrorist operations, conducting a terrorist or insurgent attack against Coalition or host-nation forces or civilians, conducting a suicide bombing, financing terrorist operations, recruiting others for terrorist operations, and arranging for movement of individuals involved in terrorist operations.”

As I have been explaining since May 2009, when the New York Times published a misleading front-page story claiming that 1 in 7 released prisoners had engaged in recidivism, there have been two main problems with the recidivism claims: firstly, that, over the last three years, little effort has been made to distinguish between “confirmed” and “suspected” cases of recidivism; and secondly that, as the claims became more outrageous in 2010 and 2011, with completely unsubstantiated allegations that 1 in 5 of the released prisoners were recidivists, and then 1 in 4, the mainstream media unquestioningly repeated these claims, even though they were not backed up with even a shred of evidence.

Last month, in my article, “Guantánamo and Recidivism: The Media’s Ongoing Failure to Question Official Statistics,” I challenged the latest claims made by the DNI – that 27.9 percent of the prisoners released from Guantánamo were recidivists — by noting that although the DNI claimed that 95 (15.9%) were described as “Confirmed of Reengaging,” and 72 others (12%) were described as “Suspected of Reengaging,” the lack of evidence for these claims was deeply troubling.

This was because, as I explained, in January 2011, when the New America Foundation issued its own report (PDF) challenging the DNI’s claims in December 2010 that 81 former prisoners (13.5 percent) were “confirmed” and 69 (11.5 percent) “suspected” of “reengaging in terrorist or insurgent activities after transfer,” the authors concluded, based on an assessment of available public documentation, that “the true rate for those who have taken up arms or are suspected of doing so is more like 6 percent, or one in 17,” with another 2.2 percent “engaged or suspected to have engaged with insurgent groups that attack or attempt to attack non-US targets”; in other words, 49 men in total, with just 36 “engaged or suspected to have engaged with insurgent groups that attack or attempt to attack the United States, US citizens, or US bases abroad.”

As I proceeded to explain:

There is a huge gulf between this analysis (of 36 men confirmed or suspected of hostile engagement with US interests) and the current claims by the DNI, in which 167 men are described as confirmed or suspected of [recidivism]. In addition, my own research over the last few years has provided no reason for believing the figures produced by the Director of National Intelligence. All available reports, for example, indicate that there are only a small number of problematical ex-prisoners from any countries except Afghanistan and Saudi Arabia, and, according to Afghan and Saudi officials, the number of “recidivists” from these two countries is no more than 45 in total.

In the Seton Hall report, the authors focused on an important statement made by  Pentagon spokesman Lt. Col. Todd Breasseale, who is the Public Affairs Officer for the Office of the Assistant Secretary of Defense, and who, as I reported in March, told CNN that he “took exception” to media reports “characterizing the current recidivism rate at 28%.” He said that “the intelligence bar for someone confirmed of returning to terrorism is much higher,” as CNN described it, and, in his own words, explained, “Someone on the ‘suspected’ list could very possibly NOT be engaged in activities that are counter to our national security interests.”

Seton Hall added further damning information from Lt. Col. Breasseale’s comments in March, noting that he also stated:

[T]his document [the latest DNI assessment] makes a distinction between “Confirmed” v. “Suspected.” This is particularly relevant because there was confusion in some early media reports conflating the two, coming up with this odd 27-28% number. To be sure, “Confirmed” is more consistent with our actual intelligence data and “Suspected” is a much lower bar, triggering an additional review that is really more akin to a sort of “early watch” system.

With this important distinction established, Seton Hall Center for Policy and Research Fellow and Report co-author Lauren Winchester noted, “The government’s supposed Confirmed is no more than 16%, and the number, since President Obama took office, is just over 3%.”

It is, of course, hugely important to have these kinds of figures established, especially because, in February, a Republican Congressional report issued by the Oversight and Investigations Subcommittee (PDF) deliberately failed to distinguish between the alleged “confirmed” and “suspected” cases, highlighting a figure of 27 percent, and annoying the Democrats on the committee to such an extent that refused to sign it, and instead issued a damning minority report (PDF).

As a result of research that I am currently undertaking, I expect to be able to demonstrate, in the not too distant future, that a more reliable figure for the alleged recidivism of former prisoners is closer to 10 percent than the 15.9 percent alleged by the government in the latest claims made by the DNI, but in the meantime I wholeheartedly recommend the Seton Hall report, which, as explained in a press release:

documents wild fluctuations — both up and down — in the number of released Guantánamo detainees said by the government to have re-engaged in activities that are counter to the United States’ security interests; shows that the government knew that GTMO was populated with “low level” detainees, but engaged in a public relations campaign to the contrary, claiming it housed “the worst of the worst”; and documents a sampling of hundreds of detainees who have returned to normal lives, including attending college, going to law school, working as electricians and even working as translators for American soldiers in Afghanistan, and warning the United States of a plot to send mail bombs into America, thereby thwarting the attempt.

Professor Mark Denbeaux, Director of the Seton Hall Law Center for Policy and Research, commented, “The HASC [House Armed Services Committee] spent one year producing a report that is misleading and perpetuates a falsehood. The shreds of justification  for GTMO disappear in the harsh truth: Once released, the so called ‘worst of the worst’ by and large return to the same peaceful lives they lived before their detention.”

Professor Denbeaux’s assessment is accurate, and is important not just to establish the lies that have been told by US officials about released prisoners, but also, more significantly, to pave the way for the release of prisoners still held — 89 of the 171 men still in Guantánamo — who have been cleared for release, but who are still held in large part because of the distorted claims about recidivism that have been cynically used over the last three years by those whose ulterior motive is to keep Guantánamo open forever, and to ensure that no one who is still there will ever be released.

Andy Worthington, a regular contributor to The Public Record, is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison and the definitive Guantánamo prisoner list, published in March 2009. He maintains a blog at andyworthington.co.uk.

In newly unclassified commentary from Guantánamo, Shaker Aamer, the last British resident in the prison, who has been held for ten years without charge or trial, has described how, in the last eight months, he has been subjected to routine sleep deprivation, and has been regularly prevented from cleaning himself, and from receiving any medical care. He has also explained how he has been regularly subjected to “Forced Cell Extractions” by teams of armed guards, who have injured him, and has been on a hunger strike that has seen him lose 30 percent of his body weight.

Fearful of the authorities’ intentions, he has also explained: “I have no doubt they want me to be harmed.” However, he added: “I will never harm myself. I have a wife and kids I want to go back to.”

What is particularly depressing about this state of affairs is that Shaker Aamer is not, to the best of our knowledge, one of the 82 prisoners at Guantánamo (out of the 171 remaining prisoners) that the Obama administration has determined to be eligible for a trial or, more depressingly, as eligible to be held indefinitely without charge or trial because they are regarded as “too dangerous to release,” even though no evidence exists that could be used against them in a court.

Shaker is reportedly one of the 89 prisoners cleared under Obama who are still held, even though he was first cleared for release in 2007, under the Bush administration, and his return has also been sought by the British government since 2007. His continued detention therefore remains both inexplicable and unjustifiable, as he could be safely returned to the UK today. It can only be presumed, therefore, that he has not been released because of his persistent defense of the prisoners’ rights. This has led to him being regarded as a threat throughout the last ten years, but that, of course, is thoroughly unacceptable as a reason for detaining someone — and especially someone that both the US and the UK governments have said that they want freed.

Ramzi Kassem, a lawyer and a law professor at the City University of New York, who is one of Aamer’s lawyers, reported that Aamer explained why he was still being mistreated at Guantánamo as follows during a visit on January 27:

I am being mistreated because I refuse to comply in the face of injustice. Prison authorities keep telling me that I have to become ‘compliant.’ I reply that it is they who have to become compliant. It is a constant, 24-hour struggle. They force me to fight every step of the way. I’m a free man. Don’t try to humiliate me.

From July 15 to December 3 last year, Aamer was held in solitary confinement in a block known as “Five Echo,” part of Camp Five, a maximum-security block, modeled on the Miami Correctional Facility, a state prison in Bunker Hill, Indiana, which opened in May 2004.

Camp Five once held up to a hundred prisoners regarded as having significant  intelligence value — or, it should be noted, regarded as being uncooperative, or as having influence over their fellow prisoners. Now, however, the block only holds 25 prisoners at most, including, in a top tier block, the five prisoners who have agreed to plea deals — or, in one case, have been convicted, in their trials by military commission.

The cells in “Five Echo” are, apparently, only half the size of the normal cells, and back in December, when information about this block first emerged publicly, Ramzi Kassem said that Aamer had described “abysmal conditions” in “Five Echo,” explaining that “the squat toilet is difficult to use, there are foul odors, bright lights shine on detainees and air conditioners keep it extremely cold.” Kassem said, “It is decrepit, filthy and disgusting. Those are the words he used to describe it.”

According to Aamer, the suffering to which he has been subjected — which has not fundamentally changed in the last few months — has involved sleep deprivation in “so many ways that only Lucifer can think of.” He has explained how the guards have been “speaking loud through the night with all kind of noises — cleaning, moving things, shaking the locks of the cell, turning the light on and off,” and how they have also regularly shone a flashlight in his face, and liberally spread detergent like pine oil or Clorox. He has explained how the strong smell fills his cell so that he can’t breathe.

In a brief explanation of the sleep deprivation, he has stated that he was “sleeping in light,” and there was “no darkness to sleep.” The lighting, as is typical, has been on “24/7″ — and he has also been confined to his cell for 22 hours a day, with just two hours allowed in the recreation yard from 6 am to 8 am every day.

He also explained how he had been prevented from cleaning himself, and had not had a shower for more than two months. He added that he had been prevented from looking after his beard, or using a nail clipper or a comb. On January 27, he noted: “Today is the first day I take shower since the 3/12/2011 and shave because I am coming to see you.” He has also complained that he has had to “shower from the toilet,” explaining, “I take water and shower from the same place I take shit.”

In addition, in a reminder that the long years of institutional paranoia at Guantánamo are not at an end, and that prisoners are permanently and disproportionately regarded as a security threat — or are punished with having all “comfort items” taken away from them — he is also prevented from having a real toothbrush, and is only allowed a small finger toothbrush, which, he said, is “no good for brushing.”

This paranoia on the part of the authorities — and the response to it that involves punishment — also extends to a ban on the use of cups, even the Styrofoam cups that prisoners used to scratch poems onto in the long years of the Bush administration. Aamer is not allowed to use a cup. “I have to drink my hot coffee and tea from water bottles,” he said. He also explained that, in the first week of December, he received a number of prohibitions:

No more condiments. No yoghurt, cheese, peanut butter, olive oil, honey. No toothpaste, no toilet paper. Why? In the name that I use it to cover the camera.

Describing the violence to which he has been subjected, he said that he was subjected to “Forced Cell Extractions” every day from December 3 until his meeting with Ramzi Kassem on January 27. On one occasion, during an early morning cell extraction, he said:

I got beaten up on my knee and my finger is almost broken. Swelled for few days … they refuse to give me any treatment not even knee brace. Bruises and swelling all over my body. Squeezing my neck so bad I could not breathe. Try to break my hand and fingers. Pressure on my back, stomach and chest, so much pressure. Tight, the plastic cuffs so tight the blood circulation stop.

He has also complained that he has “no privacy,” and that he has had “no medical care whatsoever” since being placed in isolation in “Five Echo.” In a visit in November, one of his attorneys, Clive Stafford Smith, the director of the legal action charity Reprieve, listed his many ailments, and wrote to the British foreign secretary William Hague that he “is gradually dying in Guantánamo Bay.”

In addition, as Aamer explained to Ramzi Kassem in January:

Since 3/12/2011, when they moved me out of 5 Echo I am going to rec alone and I haven’t seen my doctor for long time and I refuse to take any meds from the medical staff. I am very worried about my health and my life in this place. I feel so vulnerable and any time they can do anything to me no one knows.

I have been on hunger strike since the 15/7/2011 and my weight went from 208 [pounds] to 148 [pounds] but they did not give me the tube to feed me so I start to eat fruit and salad sometimes so I don’t harm my body. I have no doubt they want me to be harmed.

One thing I know for sure if something bad happen to me it happened with the hand of the American. I will never harm myself. I have a wife and kids I want to go back to. Anything happen to me, they done it.

There is so much to say about the evil they do in this place, specially the small things that no one pay attention to it but one thing you need to know:

They control the air we breathe. Control the light, control the noise, control the food, control the water. They control everything and they use it against me any time they want. All that you need to know about this place you just need to read 1984 by George Orwell.

I swear to my only Lord there is no human being in this place. Guards with no feelings, they do what they are told, regardless of anything.

Andy Worthington, a regular contributor to The Public Record, is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison and the definitive Guantánamo prisoner list, published in March 2009. He maintains a blog at andyworthington.co.uk.

This picture of Abu Zubaydah was included in his classified Guantanamo Detainee Assessment Brief released last month by WikiLeaks.

Ten years ago, on the evening of March 28, 2002, the Bush administration officially embarked on its “high-value detainee” program in the “war on terror” that had been declared in the wake of the terrorist attacks on September 11, 2001, when Zayn al-Abidin Muhammad Husayn (more commonly identified as Abu Zubaydah), was captured in a house raid in Faisalabad, Pakistan.

For the next four and half years, Abu Zubaydah, described on his capture as a senior al-Qaeda operative, was held in secret prisons run by the CIA, until, with 13 other “high-value detainees,” he was moved to Guantánamo, in September 2006, where he remains to this day.

Initially taken to a secret prison in Thailand, he was then moved to another secret prison in Poland, and it was there, in August 2002, that he was subjected to an array of torture techniques, including waterboarding (an ancient form of torture, which involves controlled drowning). The torture allegedly only began after John Yoo, a lawyer in the Justice Department’s Office of Legal Counsel, which is supposed to provide impartial advice to the executive branch, wrote two memos (the “torture memos,” signed by his boss, Jay S. Bybee), which purported to redefine torture, and authorized the CIA to use ten techniques — including waterboarding — on Zubaydah. He was subsequently waterboarded 83 times.

Then, between September 24, 2003 and March 27, 2004, Zubaydah and other “high-value detainees” were moved to “Strawberry Fields,” a secret prison-within-a-prison at Guantánamo. However, when it became clear that the Supreme Court would grant the Guantánamo prisoners habeas corpus rights (in Rasul v. Bush in June 2004), Zubaydah and the other “high-value detainees” were moved again. Some, including Zubaydah, were sent to Morocco, and his lawyers state that, in February 2005, he was then moved to a secret prison in Lithuania.

The tenth anniversary of Zubaydah’s capture is noteworthy because still no one has been held accountable for his rendition and torture. In 2006, the Justice Department began an investigation into the ethical behaviour of John Yoo and Jay Bybee, but after four years, when the investigators concluded that both men were guilty of “professional misconduct,” a veteran DoJ fixer, David Margolis, was allowed to override the conclusions, deciding instead that Yoo and Bybee had only shown “poor judgment.” Of course, “professional misconduct” would have led to sanctions, and might have prised open the largely suppressed torture debate, but “poor judgment” led to no punishment at all.

With all avenues to accountability closed in the US, where President Obama has repeatedly blocked attempts by victims of torture to secure access to any US courtroom, invoking the little-used “state secrets” doctrine, any attempts to secure accountability have had to be initiated in other countries. Two torture cases, which began in 2009, are ongoing in Spain, despite attempts by the Obama administration to shut them down, and the most recent submission, by the New York-based Center for Constitutional Rights, was in February this year.

More significantly, in terms of complicity in torture, as well as holding the Bush administration accountable, are lawsuits in Poland and Lithuania, which both involve Abu Zubaydah.

In 2008, following investigations by the Council of Europe and the European Parliament, a Polish prosecutor began “investigating the possible abuse of power by Polish public officials with regard to a CIA black site,” although the investigation only became widely noted in September 2010, when lawyers working with the Open Society Justice Initiative “filed an application demanding that the Appellate Prosecutor in Warsaw investigate and prosecute the people responsible for Guantánamo prisoner Abd al-Rahim al-Nashiri’s transfer, detention, and torture on Polish soil.”

Al-Nashiri (another “high-value detainee” held and tortured in Thailand prior to his arrival in Poland) was granted victim status in October 2010, and in December 2010, following this success, INTERIGHTS, the international center for human rights, working with the legal action charity Reprieve, the Polish lawyer Bartlomiej Jankowski, and Abu Zubaydah’s US lawyers Joe Margulies and Brent Mickum “filed two applications for Zubaydah providing official notification of crimes committed against him while he was held by the CIA in Poland, and requesting that Abu Zubaydah be formally recognised as a victim in the ongoing investigation into abuse of office by Polish officials, and any criminal investigations that may follow.”

In January 2011, Abu Zubaydah was also recognized as a victim, and although the trail has largely gone cold over the last year, it came back to life on March 27, the day before the 10th anniversary of Zubaydah’s capture, when the Polish media announced that Zbigniew Siemiatkowski, who was the chief of Poland’s intelligence services from 2002 to 2004, when the CIA prison was operating, has been accused, by the Warsaw Prosecutor Waledmar Tyl, of “exceeding his powers and breaching international law, with specific charges that he was involved in the ‘unlawful deprivation of liberty’” of prisoners and their physical punishment.

Siemiatkowski has announced his intention not to cooperate. In an interview with the Gazeta Wyborcza newspaper and the TVP television station, he said, “While in the prosecutor’s office I refused to answer questions and I shall continue to do so at every stage of the proceedings, including in court.” However, although he also said that prosecutors first announced their intention to act on January 10, and TheNews.pl website announced that “the completion of Poland’s official investigation into the affair was delayed for a second time on 1 February, with Warsaw Prosecutor Waledmar Tyl suggesting that the results may not see the light of day until August this year,” Gazeta Wyborcza claimed that “prosecutors acted after receiving full documentation from Poland’s Intelligence Agency about cooperation with the CIA in the first years of the War on Terrorism,” indicating that there is a solid case against Siemiatkowski — and also, presumably, against his deputy, Col. Andrzej Derlatka, who was “directly responsible for dealing with the American intelligence service,” and will face similar charges.

According to TheNews.pl, the announcement also indicates that Leszek Miller, the prime minister at the time the prison was open, “may be brought in front of the State Tribunal, Poland’s supreme judicial body,” to answer questions about what he knew, as may the President of Poland at the time, Aleksander Kwasniewski. Reports last year suggested that “he only found out about the ‘black site’ at the Stare Kiejkuty intelligence base, near the Szczytno-Szymany airport, over 100 kilometres from Warsaw, when President George W. Bush thanked him for Poland‘s assistance in the ‘war against terror’” during a visit in June 2003. His thanks were allegedly “so profuse” that Kwasniewski “realized that ‘something was not right,’ as Poland had only sent a limited number of troops to Afghanistan and Iraq, to his knowledge.”

As TheNews.pl explained, “When Kwasniewski subsequently found out that CIA-leased planes had been flying terrorist suspects in and out of Poland, the then president ordered the detention centre to be closed down,” according to anonymous sources who spoke to Gazeta Wyborcza. One said, “Consequently, the last plane with CIA prisoners on board left Poland on 23 September 2003 from Szymany.”

The news from Poland can only provide comfort for those seeking accountability for the other secret prisons in Europe — in Lithuania and Romania. On October 27, 2011, INTERIGHTS filed a case before the European Court of Human Rights in Strasbourg, “concerning the responsibility of Lithuania for [Abu Zubaydah's] enforced disappearance, torture and ill-treatment at a secret detention facility in Lithuania, and a number of other violations of the European Convention on Human Rights.”

INTERIGHTS added that the case “concerns the failure of the Lithuanian government to account for the violations inflicted on Abu Zubaydah on Lithuanian territory,” chastising the Lithuanian government for previously launching a “superficial criminal investigation, conducted by the Prosecutor General at the instigation of Parliament,” which “was prematurely closed on 14 January 2011,” and noting, “Despite the submission of new evidence recently by two human rights organisations, Reprieve and Amnesty International, on 21 October 2011, Lithuania’s Prosecutor General decided not to re-open the criminal investigation.”

Abu Zubaydah was never held in Romania, but others, including Khalid Sheikh Mohammed, the alleged 9/11 mastermind, were. Although the Romanian authorities have never even opened an investigation, the prison’s existence became front page news in December last year, when the Associated Press and the German television program ARD Panorama discovered the location of the prison, codenamed “Bright Light,” in the basement of a government building in Bucharest, which “opened for business in the fall of 2003, after the CIA decided to empty the black site in Poland,” according to former US officials, who spoke to the AP anonymously.

The officials also explained that the basement “consisted of six prefabricated cells, each with a clock and arrow pointing to Mecca,” adding that the cells “were on springs, keeping them slightly off balance and causing disorientation among some detainees.” The AP also noted, “During the first month of their detention, the detainees endured sleep deprivation and were doused with water, slapped or forced to stand in painful positions,” although, “After the initial interrogations, the detainees were treated with care” and “received regular dental and medical check-ups,” and Halal food flown in from the CIA’s European HQ in Frankfurt.

Although the European investigations are extremely important, the focus, on the 10th anniversary of Abu Zubaydah’s capture, still needs to be on the US as well. After all, what ought to be both noticeable and scandalous is the fact that, despite being held for 3,653 days, he has only on one occasion been able to speak openly about his experiences, at his Combatant Status Review Tribunal in Guantánamo in 2007 (PDF), when he said that he was tortured by the CIA to admit that he worked with Osama bin Laden, but insisted, “I’m not his partner and I’m not a member of al-Qaeda.”

The only other statements that have been revealed publicly have come from Zubaydah’s interviews with representatives of the International Committee of the Red Cross, which, along with interviews with other “high-value detainees,” were the basis of a harrowing report to the US government that was leaked in 2009 (PDF).

Other than this, Zubaydah, like all the “high-value detainees” — except the handful who have been able to speak briefly in hearings related to their intended military commission trials — have been thoroughly silenced throughout their detention, not just in the CIA “black sites,” but also for the last five and a half years in Guantánamo, where every word exchanged between the prisoners and their lawyers remains classified. In Guantánamo, all exchanges between prisoners and their lawyers are presumptively classified, but with the “high-value detainees,” not a word has ever been unclassified. This is a state of affairs for which there can only be one explanation — that the US wants to permanently hide any reference to their torture.

This combination of torture and enforced silence would be disgraceful enough if those held were genuinely accused of acts of international terrorism, but that is not even necessarily the case, as the recent plea deal in the military commission trial of Majid Khan demonstrated. In Zubaydah’s case, the man once touted as “al-Qaeda’s number 3″ turned out to be, in the words of former FBI interrogator Dan Coleman, a “safehouse keeper” with mental health problems. Zubaydah had suffered a serious head injury years before his capture, and, as Coleman said, referring to actual al-Qaeda operatives, “They all knew he was crazy, and they knew he was always on the damn phone. You think they’re going to tell him anything?”

Referring to the overblown claims about Zubaydah, INTERIGHTS explained:

After more than six years of incommunicado detention, Zubaydah obtained access to US lawyers, who challenged his detention in US courts and forced the US Department of Justice to withdraw all such allegations. The United States no longer alleges Abu Zubaydah was ever a member of al-Qaeda or that he supported al-Qaeda’s radical ideology. The United States no longer alleges that Abu Zubaydah was an associate of Osama bin Laden or that he was his senior lieutenant. The United States no longer alleges that Zubaydah had any role in any terrorist attack planned or perpetrated by al-Qaeda, including the attacks of 11 September 2001. Instead, the authorities have concocted some implausible story about him being the head of a militia aligned with al-Qaeda, whose alleged existence first surfaced in the habeas corpus petition of another prisoner, Sufyian Barhoumi.

This, however, just looks like a refusal to face facts — that an insignificant player in pre-9/11 Afghanistan was brutally tortured until he almost lost his mind. As INTERIGHTS has also explained:

As a result of the torture and ill-treatment Abu Zubaydah has been subjected to … he suffers from serious mental and physical health problems and debilitating on-going pain and suffering. Publicly available records describe how prior injuries were exacerbated by his ill-treatment and by his extended isolation. As a consequence, he has permanent brain damage and physical impairment. He suffers blinding headaches, and has an excruciating sensitivity to sound. Between 2008 and 2011 alone, he experienced more than 300 seizures. At some point during his captivity, the CIA removed his left eye. His physical pain is compounded by his awareness that his mind is slipping away. He suffers partial amnesia, and has trouble remembering his family.

In marking the tenth anniversary of Abu Zubaydah’s capture, I can only ask one question in parting: can anyone tell me what these ten years of torture are supposed to have achieved?

Originally published on the website of the Future of Freedom Foundation.

Andy Worthington, a regular contributor to The Public Record, is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison and the definitive Guantánamo prisoner list, published in March 2009. He maintains a blog at andyworthington.co.uk.

Image: Jared Rodriguez / t r u t h o u t; Adapted: art makes me smile, The U.S. Army

Last week, the Director of National Intelligence, in consultation with the Director of the CIA and the Director of the Defense Intelligence Agency, issued a two-page unclassified summary, entitled, “Summary of the Reengagement of Detainees Formerly Held at Guantánamo Bay, Cuba” (PDF), which provided information about the purported “recidivism” of former prisoners.

According to the summary, of the 599 prisoners released from Guantánamo, 95 (15.9%) are described as “Confirmed of Reengaging,” and 72 others (12%) are described as “Suspected of Reengaging.” However, in the mainstream media, little distinction was made between the “confirmed” and “suspected” figures. Reuters’ headline, for example, was “Recidivism rises among released Guantánamo detainees,” which was typical. In seeking to justify it, Reuters’ reporter stated, “The figures represent a 2.9 percent rise over a 25 percent aggregate recidivism rate reported by the intelligence czar’s office in December 2010.”

In terms of statistics, this was accurate, as the DNI report in December 2010 (PDF) contained an assessment that 81 former prisoners (13.5 percent) were “confirmed” and 69 (11.5 percent) “suspected” of “reengaging in terrorist or insurgent activities after transfer.” However, as has been the case since “reports” like these first began to be published, under the Bush administration (see this 2009 Seton Hall Law School report – PDF), the mainstream media has persistently refused to demand that the statistics be backed up with evidence.

The last time that anything resembling evidence was provided — in a short Pentagon report in May 2009 (PDF) — the New York Times shamefully published a front-page story entitled, “1 In 7 Detainees Rejoined Jihad, Pentagon Finds,” stating that “74 prisoners released from Guantánamo have returned to terrorism, making for a recidivism rate of nearly 14 percent.”

It took a week for the Times to allow other commentators — Peter Bergen and Katherine Tiedemann of the New America Foundation — to write an op-ed discrediting Bumiller’s article, in which they concluded, from an examination of the report, that a more probable figure for recidivism — based on the fact that there were “only 12 former detainees who can be independently confirmed to have taken part in terrorist acts directed at American targets, and eight others suspected of such acts” — was “about 4 percent of the 534 men who have been released.”

Following this latest report, the mainstream media’s response was more balanced than it was in the wake of the last DNI report, when Fox News, for example, ran with “25 Percent Recidivism at Gitmo.” Of particular significance was the Associated Press article, “US officials: Not quite so many Gitmo re-offenders.” This article made a specific point of criticizing a Republican Congressional report issued in February, by the Oversight and Investigations Subcommittee (PDF), which, in dealing with the “confirmed” and “suspected” cases, “added those two figures together, coming up with a much more dramatic rate of 27 percent of the roughly 600 detainees released returning to the battlefield,” and was so one-sided that the Democrats on the Congressional committee refused to sign it, issuing instead a damning minority report (PDF).

Speaking to CNN, Pentagon spokesman Lt. Col. Todd Breasseale “took exception” to media reports “characterizing the current recidivism rate at 28%.” He said that “the intelligence bar for someone confirmed of returning to terrorism is much higher,” as CNN described it, and, in his own words, explained, “Someone on the ‘suspected’ list could very possibly not be engaged in activities that are counter to our national security interests.”

This was significant, although there are still problems with the 95 former prisoners who are supposedly confirmed as “recidivists.” A year ago, when the New America Foundation issued its own report challenging the 2010 DNI claims (PDF), accompanied by an article in Foreign Policy, the authors concluded, based on an assessment of available public documentation, that “the true rate for those who have taken up arms or are suspected of doing so is more like 6 percent, or one in 17,” with another 2.2 percent “engaged or suspected to have engaged with insurgent groups that attack or attempt to attack non-US targets”; in other words, 49 men in total, with just 36 “engaged or suspected to have engaged with insurgent groups that attack or attempt to attack the United States, US citizens, or US bases abroad.”

There is a huge gulf between this analysis (of 36 men confirmed or suspected of hostile engagement with US interests) and the current claims by the DNI, in which 167 men are described as confirmed or suspected of “planning terrorist operations, conducting a terrorist or insurgent attack against Coalition or host-nation forces or civilians, conducting a suicide bombing, financing terrorist operations, recruiting others for terrorist operations, and arranging for movement of individuals involved in terrorist operations.”

In addition, my own research over the last few years has provided no reason for believing the figures produced by the Director of National Intelligence. All available reports, for example, indicate that there are only a small number of problematical ex-prisoners from any countries except Afghanistan and Saudi Arabia, and, according to Afghan and Saudi officials, the number of “recidivists” from these two countries is no more than 45 in total.

in June 2010, Abdulrahman al-Hadlaq, the director of ideological security at the Saudi interior ministry, told reporters, “Twenty-five of the 120 former detainees at the US ‘war-on-terror’ prison returned to radical Islamist activities after graduation from Riyadh’s lauded rehab centre,” as AFP described it, and in September 2011, in the Washington Post, Siyamak Herawi, a spokesman for the Afghan government, said that “most former prisoners led ‘normal lives’ after being released,” although he added that the government estimated that “between eight and 10 percent rejoined armed groups fighting the NATO-backed government”; in other words, somewhere between 16 and 20 of the 198 Afghan prisoners released.

With figures like these, it is, I believe, entirely appropriate not to trust the claims made by the Director of National Intelligence, without some actual evidence provided to accompany the headline-grabbing statistics, which, frankly, continue to function not as meaningful analysis of a genuine threat, but as nothing more than propaganda.

Originally published on the website of the Future of Freedom Foundation.

Andy Worthington, a regular contributor to The Public Record, is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison and the definitive Guantánamo prisoner list, published in March 2009. He maintains a blog at andyworthington.co.uk.

(Left to right) Senators Joseph Lieberman, Carl Levin, chair, Senate Armed Services Committee, and John McCain. The controversial provisions in the National Defense Authorization Act were hatched in secret by Levin and McCain. Army photo by D. Myles Cullen

The shameful dinosaurs of the Senate — hopelessly out of touch with reality, for the most part, and haunted by specters of their own making — approved, by 93 votes to 7, the passage of the National Defense Authorization Act (PDF), which contains a number of astonishingly alarming provisions — Sections 1031 and 1032, designed to make mandatory the indefinite military detention of terror suspects until the end of hostilities in a “war on terror” that seems to have no end (if they are identified as a member of al-Qaeda or an alleged affiliate, or have planned or carried out an attack on the United States), ending a long and entirely appropriate tradition of trying terror suspects in federal court for their alleged crimes, and Sections 1033 and 1034, which seek to prevent the closure of Guantánamo by imposing onerous restrictions on the release of prisoners, and banning the use of funds to purchase an alternative prison anywhere else. I have previously remarked on these depressing developments in articles in July and October, as they have had a horribly long period of gestation, in which no one with a grip on reality — and admiration for the law — has been able to wipe them out.

The four sections are connected, as cheerleaders for the mandatory military detention of terror suspects want them to be sent to Guantánamo, and have done, if I recall correctly, at least since Umar Farouk Abdulmutallab, the failed Christmas plane bomber in 2009, was arrested, read his Miranda rights, and interrogated by the FBI. Recently, Abdulmutallab, who told his interrogators all they wanted to know without being held in military custody — and, for that matter, without being tortured, which is what the hardcore cheerleaders for military detention also want — was tried and convicted in a federal court.

Hundreds of other terror suspects have been successfully prosecuted in federal court, throughout the Bush years, and under Obama, but supporters of military custody like to forget this, as it conflicts with their notions, held since the aftermath of 9/11 and the Bush administration’s horrendous flight from the law, that terrorists are warriors. Underpinning it all is the Authorization for Use of Military Force (AUMF), the founding document of the “war on terror,” passed the week after the 9/11 attacks. This authorizes the President to pursue anyone, anywhere who he thinks was involved in the 9/11 attacks, and it is a dreadfully open-ended excuse for endless war whose repeal I have long encouraged, but which some lawmakers have been itching to renew, even after the death of Osama bin Laden, and the obvious incentives for the winding-down of the ruinous, decade-long “war on terror.”

The fundamental opposition to the provision for the mandatory military custody of terror suspects

Depressingly, when it came to passing the Act, the world was treated to the unedifying spectacle of lawmakers arguing about whether the existing law — the AUMF, plus the Supreme Court’s 2004 ruling in Hamdi v. Rumsfeld that it authorizes detention until the end of hostilities — actually applies to Americans, and whether, on that basis, this new legislation does too. Their compromise was that it would authorize whatever already exists, which only made them look rather stupid, frankly. For evidence, check out this comment from Sen. Carl Levin,  as mentioned in the New York Times. “We make clear that whatever the law is, it is unaffected by this language in our bill,” he said.

However, one of the even more extraordinary things about the Senate’s custody provisions is not only that they are a mangled, scrambled mess, but also that no one who will be required to obey them wants anything to do with them. The executive branch, the military, the FBI and the CIA — no one asked for this new policy. As Spencer Ackerman noted for Wired:

Defense Secretary Leon Panetta opposes the maneuver. So does CIA Director David Petraeus, who usually commands deference from senators in both parties. Pretty much every security official has lined up against the Senate detention provisions, from Director of National Intelligence James Clapper to FBI Director Robert Mueller, who worry that they’ll get in the way of FBI investigations of domestic terrorists.

Also opposing the bill’s unwanted provisions are Department of Defense General Counsel Jeh Johnson, Obama Counterterrorism adviser John Brennan, 16 former interrogators and counterterrorism professionals, and 26 retired military leaders who, on Tuesday, urged Senators to support an amendment by Sen. Mark Udall, backed by Sen. Jim Webb, to strip all the troublesome provisions from the legislation (and also see Sen, Udall’s eminently sensible Washington Post op-ed). Despite this, the Udall amendment was defeated by 61 votes to 37 (with 16 Democrats voting against the amendment — see the breakdown of votes here).

In addition, President Obama has threatened to veto the bill, although whether he will remains to be seen. The mandatory military custody provisions, after all, have a get-out clause, as Andrew Cohen noted for the Atlantic a month ago, when he wrote:

Section 1032, to be applied in concert with Section 1031, contains a mandatory detention requirement for anyone “determined” (by the military) to be a member of al-Qaeda or its affiliates. It allows the executive branch, however, to “waive” this requirement by having the “Secretary of Defense … in consultation with the Secretary of State and the Director of National Intelligence” submit to Congress a written certificate that the waiver is in the “national security interests of the United States.” The executive branch, in other words, would practically have to do a song-and-dance on Capitol Hill to prosecute a terror suspect in civilian court.

Obama, of course, is no great defender of due process, as he had Osama bin Laden killed in a Wild West style and also approved the execution without any kind of charge or trial of Anwar al-Awlaki, an American citizen, in Yemen, where he was producing irritating jihadist material in English on the Internet. However, it seems likely that his defense secretary, Leon Panetta, will indeed be forced to jump through hoops if the custody provisions are not removed.

I honesty find it hard to believe that these proposals even made it as far as they did, especially as Sen. Carl Levin was involved in drafting the legislation with the usual deranged suspects — Sens. John McCain, Lindsey Graham and Joe Liebermann — plus torture advocate Sen. Kelly Ayote, who attempted to specifically reintroduce torture as official US policy in her own deranged bill, which was recently defeated. Astonishingly, the Senate Armed Services Committee, where this toxic brew was created, conjured it up in secret, which did not go down well with some of the lawmakers’ colleagues. Although Senate Majority Leader Harry Reid initially found his spine and spoke up against it, he soon remembered that it is his job to cave in on matters of importance, which he duly did, although others were not so easily swayed.

Vermont Sen. Patrick Leahy, as Andrew Rosenthal explained in the New York Times, noted with horror that the provisions were “hashed out behind closed doors without consultation with his committee [he is the chairman of the Senate Judiciary Committee], or the Intelligence Committee, or the Defense Department, the FBI or the intelligence community.” In addition, as Andrew Cohen explained:

Leahy, and California’s Dianne Feinstein, chairwoman of the Senate Select Committee on Intelligence, wrote Sen. Reid a letter requesting that the controversial provisions be removed from the NDAA. “We concur with the Administration’s view that mandatory military custody is ‘undue and dangerous,’” they wrote, “and that these provisions would ‘severely and recklessly undermine’ our Nation’s counterterrorism efforts.”

The provisions relating to Guantánamo and why they are also important

However, while a host of critics are lined up against the mandatory military custody aspects of the bill, far less attention, unfortunately, has been paid to the provisions preventing the closure of Guantánamo. As Andrew Cohen lamented a month ago, “I think Section 1034 [banning the use of any funds to buy an alternative prison] may be the worst of the lot — a triumph of fear and prejudice over pragmatic solutions. But it doesn’t appear to have raised the hackles of even those senators who are opposed to some of the other provisions. Go figure.”

Go figure, indeed. It may, perhaps, be slightly cynical of me to note that the story of Guantánamo involves foreigners and that Americans only wake up in any kind of numbers when legal monstrosities might apply to American citizens, but there does appear to be some truth in it. If it could be demonstrated that no American could possibly end up in mandatory military custody as a result of the Senate’s mad provisions, I would be prepared to wager that hardly any Americans would bat an eyelid.

As it is, I can only hope that the two sections relating to Guantánamo, and two other sections specifically criticized by the President’s advisors (in which Congress demanded detainee reviews from the executive branch) are subjected to a veto. To make it clear, Section 1033 (which ramps up unjustifiable restrictions already implemented by lawmakers) is entitled, “Requirements for certifications relating to the transfer of detainees at United States Naval Station, Guantánamo Bay, Cuba, to foreign countries and other foreign entities,” and it stipulates that no transfer out of Guantánamo will be allowed “if there is a confirmed case of any individual who was detained at [Guantánamo] who was transferred to such foreign country or entity and subsequently engaged in any terrorist activity.”

As noted above, Section 1034 (which repeats previous bans imposed by lawmakers) is entitled, “Prohibition on use of funds to construct or modify facilities in the United States to house detainees transferred from United States Naval Station, Guantánamo Bay, Cuba,” prevents the closure of Guantánamo by stopping the President from buying or modifying an alternative facility elsewhere, and then there are the two other provisions, both new, and both largely unnoticed.

Section 1035, entitled, “Procedures for periodic detention review of individuals detained at United States Naval Station, Guantánamo Bay, Cuba,” requires the Secretary of Defense “to submit a report to Congress for implementing the periodic review process” established in the executive order of March this year, which, outrageously, authorized the indefinite detention without charge or trial — but with periodic reviews — of 46 of the remaining 171 prisoners, on the unacceptable basis that they were too dangerous to be released, but that there was insufficient evidence to put them on trial.

Section 1036, entitled, “Procedures for Status Determinations,” states that, “Not later than 90 days after the date of the enactment of this Act, the Secretary of Defense shall submit to the appropriate committees of Congress a report setting forth the procedures for determining the status of persons detained pursuant to the Authorization for Use of Military Force (Public Law 107–40) for purposes of section 1031″ — meaning that it is supposed to establish, to the satisfaction of Congress, who will be subjected to mandatory military custody.

The response of the President’s Office, in its letter threatening a veto, spells out the administration’s opposition to these sections, and is of interest. The President’s advisors noted:

The certification and waiver, required by section 1033 before a detainee may be transferred from Guantánamo Bay to a foreign country, continue to hinder the Executive branch’s ability to exercise its military, national security, and foreign relations activities. While these provisions may be intended to be somewhat less restrictive than the analogous provisions in current law, they continue to pose unnecessary obstacles, effectively blocking transfers that would advance our national security interests, and would, in certain circumstances, violate constitutional separation of powers principles. The Executive branch must have the flexibility to act swiftly in conducting negotiations with foreign countries regarding the circumstances of detainee transfers.

Section 1034′s ban on the use of funds to construct or modify a detention facility in the United States is an unwise intrusion on the military’s ability to transfer its detainees as operational needs dictate.

Section 1035 conflicts with the consensus-based interagency approach to detainee reviews required under Executive Order No. 13567, which establishes procedures to ensure that periodic review decisions are informed by the most comprehensive information and the considered views of all relevant agencies.

Section 1036, in addition to imposing onerous requirements, conflicts with procedures for detainee reviews in the field that have been developed based on many years of experience by military officers and the Department of Defense.

The President’s advisors concluded:

In short, the matters addressed in these provisions are already well regulated by existing procedures and have traditionally been left to the discretion of the Executive branch.

Broadly speaking, the detention provisions in this bill micromanage the work of our experienced counterterrorism professionals, including our military commanders, intelligence professionals, seasoned counterterrorism prosecutors, or other operatives in the field. These professionals have successfully led a Government-wide effort to disrupt, dismantle, and defeat al-Qaeda and its affiliates and adherents over two consecutive Administrations. The Administration believes strongly that it would be a mistake for Congress to overrule or limit the tactical flexibility of our Nation’s counterterrorism professionals.

This is not quite the end of the road for the NDAA, as it must now be consolidated with the version previously passed by the House of Representatives, which I wrote about here and here. However, it is almost certain that the President will soon be required to make clear what he thinks.

If Obama is wavering, as is his habit, I would suggest that he takes note of the fact that the election season is nearly upon us, and that, as we approach that frenzy of hype and hyperbole, he needs do something to make his progressive supporters remember why they might want to vote for him, rather than just hoping — or presuming — that they will not vote against him. In short, the President needs to veto this bill, and stand up for US justice, and the still-pressing need to close Guantánamo, rather than doing as he has so often on national security issues, and caving in to pressure.

Andy Worthington, a regular contributor to The Public Record, is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison and the definitive Guantánamo prisoner list, published in March 2009. He maintains a blog at andyworthington.co.uk.

In June 2004, for a brief moment, George W. Bush’s excesses were checked by the Supreme Court, which, in Rasul v. Bush, took the unprecedented move of granting habeas corpus rights to prisoners seized in wartime, after recognizing that the Bush administration had shunted aside the Geneva Conventions in favor of a unprecedented system of arbitrary detention.

In this system, the US government decided that all its actions relating to terrorism and the perceived threat from al-Qaeda and the Taliban (essentially regarded as interchangeable with al-Qaeda because they had “hosted” Osama bin Laden in Afghanistan) constituted part of a “war on terror,” and decided that everyone seized could be held, without anyone bothering to ascertain whether they had been seized by mistake, as “illegal enemy combatants,” who literally had no rights whatsoever, either as human beings or as prisoners.

For the Bush administration and for Congress, however, although the Supreme Court’s ruling was inconvenient, as it allowed lawyers to take on prisoners as clients, and to meet with them, it was not the end of their adherence to arbitrary detention, and they largely fought back against it. The President introduced a hastily invented review process for the prisoners (the Combatant Status Review Tribunals), which was heavily weighted in favor of the presumption that they had been correctly designated as “enemy combatants” on capture, and Congress went further, passing laws in 2005 and 2006 — the Detainee Treatment Act and the Military Commissions Act — that purported to strip the prisoners of their habeas corpus rights.

It was not until June 2008 that the Supreme Court once more took the opportunity to reassert its authority (in Boumediene v. Bush), arguing that the habeas-stripping provisions of the DTA and MCA were unconstitutional, and reiterating that the prisoners had habeas corpus rights, and that, this time around, they were constitutionally guaranteed.

For opponents of Guantánamo and the “war on terror,” what followed was a golden period for accountability, as, between October 2008 to July 2010, 38 out of 52 prisoners won their habeas corpus petitions, as judge after judge in the District Court in Washington D.C. concluded that the government had failed to meet its spectacularly low burden of establishing, “by a preponderance of the evidence,” that the prisoners were involved with al-Qaeda and/or the Taliban.

In the majority of cases, the government accepted defeat, releasing — or not opposing the release — of 31 of these men, and 26 were subsequently released. The other five are Uighurs (Muslims from China’s oppressed Xinjiang province), who are at risk of torture if repatriated, and who are still seeking a new home.

Beginning in January 2010, however, judges in the D.C. Circuit Court started pushing back against the lower court’s rulings, at first by advocating for unfettered executive power in wartime (which the Obama administration had not even asked for), and then by whittling away at the requirements for ongoing detention decided by the District Court judges (who largely agreed that prisoners had to be demonstrably part of a chain of command).

The Circuit Court judges, led by Senior Judge A. Raymond Randolph, who was notorious, under George W. Bush, for supporting every piece of Guantánamo-related legislation that was subsequently overturned by the Supreme Court, also pushed to reduce, if not to eliminate entirely, the burden on the government to establish that its evidence was trustworthy, and the result, from July 2010 onwards, has been that five successful habeas petitions have either been reversed (three cases) or vacated, and sent back to the lower court to reconsider (two cases). In addition, the District Court judges, who were, essentially, ordered to lower the burden of proof and regard the government’s alleged evidence as reliable, have, since July 2010, turned down the last eleven habeas petitions submitted by the prisoners. Details and links are in my article, Guantánamo Habeas Results: The Definitive List.

Fadel Hentif, a Yemeni, loses his habeas petition for having a watch and staying in a guesthouse

I have, previously, written about eight of these rulings, but have not provided any updates since summer, when I wrote about how Khairullah Khairkhwa, a former Taliban minister, lost his habeas petition in June. The next prisoner to lose was Fadel Hentif (also identified as Fadil Hintif), a Yemeni whose habeas petition was refused by Judge Henry H. Kennedy Jr. on August 1, 2011, although a heavily redacted version of the opinion was not made available until mid-September (PDF).

Hentif claimed to have traveled to Afghanistan to perform humanitarian aid work, which he said, “would be a chance to do something good in memory of his deceased father.” After staying briefly in a guesthouse in Kandahar, he said that he was directed by the owner of the guesthouse to stay with a Yemeni in Kabul, who provided medical supplies to Afghans in need. Hentif said that he worked with this man for a while, and then traveled to Logar province and the city of Jalalabad before leaving for Pakistan, where he was seized and transferred to US custody.

In challenging his story, the US government claimed, primarily, that the guesthouse was affiliated with al-Qaeda, that Hentif had attended a training camp, that two men he met in Kabul were also affiliated with al-Qaeda, and that he had been present at the battle of Tora Bora at the end of 2001, which was a showdown between al-Qaeda and the Taliban, on the one hand, and US forces and their Afghan proxies on the other.

However, while Judge Kennedy found no evidence that Hentif had attended a training camp or had been at Tora Bora, and also found no evidence confirming his connection with suspicious individuals in Kabul, he was required, by a Circuit Court precedent, to conclude that “staying at an al-Qaeda guesthouse is ‘overwhelming’ evidence of an affiliation with al-Qaeda.”

Shockingly, in reaching his conclusion that the respondents (the government) had “carried their burden by a preponderance of the evidence,” he was also convinced by a piece of alleged evidence that, throughout Guantánamo’s history, has been mocked by commentators; namely, his possession of a model of Casio watch allegedly linked to the detonation of IEDs (improvised explosive devices). Influenced, again, by the Circuit Court, which declared that “evidence that a detainee had a Casio watch on his person at the time of his capture was a ‘telling fact,’” Judge Kennedy noted, “Although Casio watches of this model are not unique, the fact that Hentif possessed one is further support for respondents’ contention that Hentif was part of al-Qaeda or the Taliban.”

What made the ruling particularly depressing was that, in January 2007, as was revealed in the classified military files released by WikiLeaks in April this year, Rear Adm. Harry B. Harris, Jr., the commander of Guantánamo at the time, recommended Hentif’s release, based on assessments made by the Joint Task Force at Guantánamo. Nevertheless, he was not released by President Bush, was not released by President Obama, and, moreover, appeared to be a victim of the Justice Department’s general indifference to the fate of the prisoners, as government lawyers could easily have been instructed not to challenge the habeas corpus petitions of any of the prisoners cleared for release by President Bush, or by President Obama’s Guantánamo Review Task Force.

Abdul Qader Ahmed Hussein, a Yemeni, loses his habeas corpus petition for handling a gun in Afghanistan

On October 12, Judge Reggie B. Walton denied the habeas corpus petition of Abdul Qader Ahmed Hussein (also identified as Ahmed Abdul Qader), another Yemeni (PDF). Just 18 years old at the time of his capture, he was one of 15 prisoners seized in a guesthouse in Faisalabad, Pakistan, on the same night — March 28, 2002 — that a supposed “high-value detainee,” Abu Zubaydah (actually the mentally damaged gatekeeper of a training camp that was not associated with al-Qaeda), and a handful of other allegedly significant prisoners were also seized from another completely different location.

Hussein was one of the few prisoners in the guesthouse to explain that he had spent time in Afghanistan, as most of the others said that they had traveled to Pakistan to study, or, in a few cases, to receive medical treatment. Whether under Bush or Obama, the administration has never been happy to accept this argument, claiming that everyone in the house had been in Afghanistan in some sort of military capacity, but officials do not have a good track record when it comes to establishing their story.

Of the 15, for example, although one died in Guantánamo in June 2006, in a disputed triple suicide, five of the remaining 14 have been released. Two of these men — Alla Ali Bin Ali Ahmed and Mohammed Hassan Odaini — were freed after convincingly winning their habeas corpus petitions, and the others were freed after administrative reviews. In addition, a sixth man, a Russian named Ravil Mingazov, won his habeas corpus petition in May 2010, only to have the ruling challenged by the government. See here for a report by his attorney on his 18-month wait for what will almost certainly be a successful appeal on the part of the government, because of the Circuit Court’s bias.

In Hussein’s case, he said that he went to Afghanistan “to help the needy and the poor,” and tried unsuccessfully to establish a charity organization. He admitted that he visited the “back line,” encouraged by friends connected to the Taliban, but insisted that he “never participated in any kind of military activities.” After leaving Afghanistan before the US-led invasion began, he said that he ended up in the house in Faisalabad, where he became friends with Fahmi Ahmed, another Yemeni, who is still held. “We shared the same vision and he has the same opinions,” Ahmed said of him, adding, “He used to use hashish with me,” whereas the other students in the house “were trying to inspire me to do the religious things, like look at my religion, because most of the students were studying the Koran and all things related to religious studies.”

Reviewing his case, in light of the Circuit Court’s rulings, Judge Walton denied Hussein’s habeas petition for a variety of reasons that do not exactly encourage overwhelming support for the direction the habeas hearings have taken. Following a previous Circuit Court ruling (in the case of a Yemeni called Hussein Almerfedi), it was considered significant that Abdul Qader Ahmed Hussein had stayed at two mosques in Pakistan run by the vast and apolitical missionary organization Jamaat al-Tablighi, which is regarded, by Justice Department lawyers and the Circuit Court, as a front for terrorism, even though it has millions of non-terrorist members worldwide, and using it to justify detention is akin to imprisoning Catholics for the actions of the IRA.

It was also considered significant that, while in Afghanistan, he was handed a Kalashnikov rifle “from three Taliban guards in an area near the lines of battle between the Taliban and Northern Alliance,” and was shown how to use the gun by one of the Taliban guards. Judge Walton was also not impressed that it took him so long to leave Afghanistan, despite professing a desire to return home, and that he failed to enrol in university while staying in Faisalabad, despite claiming that he intended to do so.

Judge Walton concluded, “These facts, when viewed together, are more than sufficient to constitute the level of ‘damning’ circumstantial evidence that is needed to satisfy the government’s burden of proof in this case,” which, to my mind, only demonstrates that the Circuit Court’s tampering with the burden of proof has had disastrous results, as Hussein now finds himself consigned to permanent imprisonment at Guantánamo, possibly for the rest of his life, based on little more than innuendo.

Karim Bostan, an Afghan, loses his habeas petition for alleged insurgent activities in summer 2002

On the same day as he delivered his ruling in Hussein’s case, Judge Walton also denied the habeas petition of Karim Bostan (also identified as Bostan Karim), an Afghan whose case demonstrates another peculiarity of Guantánamo — the desire, on the part of successive US administrations, to hold, in a prison supposedly associated with terrorism, Afghans allegedly involved in minor acts of insurgency against the US occupation of their country (PDF).

In Bostan’s case, the evidence has always been thin, to put it charitably. A preacher and a shopkeeper, he was seized on a bus that traveled regularly between Afghanistan and Pakistan, and was reportedly “apprehended because he matched the description of an al-Qaeda bomb cell leader and had a [satellite] phone,” which he had apparently been asked to hold by a fellow passenger, Abdullah Wazir (who was released from Guantánamo in December 2007). Other allegations were made by another Afghan, a young man named Obaidullah, who said in Guantánamo that he had made false allegations (and had also falsely incriminated Bostan), while he was being abused by US soldiers in Khost and Bagram. As he explained:

The first time when they [US soldiers] captured me and brought me to Khost they put a knife to my throat and said if you don’t tell us the truth and you lie to us we are going to slaughter you … They tied my hands and put a heavy bag of sand on my hands and made me walk all night in the Khost airport … In Bagram they gave me more trouble and would not let me sleep. They were standing me on the wall and my hands were hanging above my head. There were a lot of things they made me say.

Despite this, Obaidullah lost his habeas corpus petition in October 2010, and is also a candidate for a trial by military commission, for which both the Bush and Obama administrations have decided that it is somehow appropriate to stretch the meaning of “war crimes” to include a young Afghan who allegedly stored and concealed explosives that could have been used to attack US forces, but never were.

In Bostan’s case, Judge Walton’s ruling revealed, shockingly, that his ongoing detention, possibly forever, was justified because he “was a member of the Jamaat al-Tablighi,” and “met Obaidullah and Wazir through the Jamaat al-Tablighi,” and because he took Abdullah Wazir’s phone on the bus and apparently attempted to hide it and the “most likely explanation” for doing so “was his knowledge that the telephone could be used to detonate explosive devices.”

Judge Walton decided that “these facts, when viewed collectively, demonstrate that the petitioner was more likely than not a ‘part of’ al-Qaeda,” and just to reiterate how far the Circuit Court has drifted from any notions of fairness and proportion, it is worth noting that he specifically stated, “As the Circuit found in Almerfedi, a detainee’s membership in Jamaat al-Tablighi, together with other ‘damning’ circumstantial evidence, is sufficient as a matter of law to justify the detainee’s detention.”

The Circuit Court’s overreach, in reversing the successful habeas petition of Adnan Farhan Abdul Latif

If these rulings should have reduced anyone who believed in US justice to some sort of state of despair, worse was to come on October 14, when the D.C. Circuit Court delivered its ruling in the government’s appeal against the successful habeas corpus petition of Adnan Farhan Abdul Latif, a Yemeni who won his petition in July 2010, reversing his successful petition in a shocking ruling that has finally seen the Circuit Court’s scandalous destruction of habeas corpus picked up on by the mainstream media (PDF).

As the New York Times noted in an editorial last Sunday, the Supreme Court’s 2008 habeas ruling in Boumediene v. Bush “has been eviscerated by the Court of Appeals for the District of Columbia Circuit,” whose “wrongheaded rulings and analyses, which have been followed by federal district judges, have reduced to zero the number of habeas petitions granted in the past year and a half.”

The Times followed up by urging the Supreme Court, which has refused to consider any significant Guantánamo appeals filed since Boumediene, to “reject this willful disregard of its decision in Boumediene v. Bush, which, the editors added, “it can do so by reviewing” Latif’s case.

In analyzing that ruling, the Times lamented that the Circuit Court had shamefully dismissed the considered opinion of the District Court judge in Latif’s case, who, ironically, was Judge Kennedy. As the Times explained, it is “undisputed” that Latif “was in a car accident in Yemen in 1994 and sustained head injuries,” and, in 2001, “went to Pakistan to seek free medical treatment, and eventually traveled to Kabul to find a Yemeni man who had promised to help him.” Moreover, although the government contended that he “was recruited by an al-Qaeda operative and fought with the Taliban,” Judge Kennedy “found that the government’s evidence did not sufficiently support its contention, that incriminating evidence was not corroborated and that Mr. Latif had a plausible alternative explanation for his travels.”

Crucially, however, in reversing Judge Kennedy’s decision, the majority judges in the Circuit Court ruling, Judge Janice Rogers Brown and Judge Karen LeCraft Henderson (who have a history of extreme decisions in Guantánamo cases), “improperly replaced the trial court’s factual findings with its own factual judgments,” as the Times explained, noting also that the court “unfairly placed the burden on Mr. Latif to rebut the presumption that the government’s main evidence was accurate,” because “the government should bear the burden of proving by a preponderance of the evidence that his detention is warranted.”

What this means, in practical terms, is not only that the Circuit Court has stepped way beyond its mandate, but, specifically, that the majority judges argued that “the government’s intelligence report on the Latif case should have been given ‘a presumption of regularity’ and that unless there is ‘clear evidence to the contrary,’ trial judges must presume that this kind of report is accurate.”

By this rationale, of course, the already severely lowered bar for detention would disappear completely, effectively making it impossible for the prisoners to argue against anything the government alleged against them. The irony, of course, is that the court had already gutted habeas of all meaning, but with this particular overreach may finally provoke a much needed and long overdue backlash. As Judge David Tatel, the third judge in the panel, noted in a strongly worded dissent, there was no reason whatsoever for his colleagues to make such an assumption about the intelligence report, which was “produced in the fog of war, by a clandestine method that we know almost nothing about.”

In addition, Judge Tatel noted that it was “hard to see what is left of the Supreme Court’s command” that the habeas review process be “meaningful,” and the Times concluded by stating that “the appeals court has gone off on the wrong track,” and reiterating that the justices of the Supreme Court “need to reaffirm the right of prisoners in Guantánamo to seek justice in federal court and to explain firmly and clearly what that entails.”

It is to be hoped that the Circuit Court’s shameful overreach will finally prompt the justices to act, and to restore the meaningful remedy that habeas was for the Guantánamo prisoners until 16 months ago.

In addition, there should be justice for Adnan Farhan Abdul Latif in particular, in part because he has well-documented mental health issues, as I explained when he won his petition, but also because he, like Fadel Hentif, was also cleared for release under George W. Bush, in December 2006, in a recommendation that was cited in an updated recommendation in January 2008 released by WikiLeaks, and issued by Rear Adm. Mark H. Buzby, who was the commander of Guantánamo at the time.

As with Hentif, the Bush administration’s failure to release him has been compounded under President Obama, who has failed to instruct the Justice Department to stop challenging the petitions of prisoners cleared for release, and, it seems clear, has been content to use the Yemeni prisoners as part of his political maneuvering.

With Yemen off-limits since January 2010, when Obama issued a moratorium on any further prisoner releases to Yemen following a hysterical response to the news that the failed Christmas plane bomber, Umar Farouk Abdulmutallab, had been trained there, it has suited the administration — with one notable exception — to prevent any political difficulties by appealing every successful habeas petition won by a Yemeni, regardless of whether there was any genuine reason for doing so, or whether, as in the cases of Fadel Hentif, Adnan Farhan Abdul Latif and the other 17 Yemenis cleared for release between 2004 and 2007 but still held, they are nothing but pawns in a political game.

Andy Worthington, a regular contributor to The Public Record, is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison and the definitive Guantánamo prisoner list, published in March 2009. He maintains a blog at andyworthington.co.uk.

Omar Khadr/Photo: Wikimedia

Last week, Omar Khadr, the Canadian citizen and former child prisoner, was supposed to leave Guantánamo after nine years and three months in US custody.

No one thought that Khadr would return to Canada as a free man, as he has another seven years to serve in a Canadian jail as part of a plea deal he made at Guantánamo a year ago, but it was reasonable to expect that he would be transferred to Canadian custody this week, as the plea deal was for an eight-year sentence — with one year to be served in Guantánamo, followed by seven in Canada.

However, as Canada.com explained last Friday, “It could be as many as 18 months before Omar Khadr steps foot in Canada even though he becomes eligible for transfer from Guantánamo Bay on Monday” (October 31).

Throughout this entire story, the behavior of the United States government, first under President Bush, and then under President Obama, has been disgraceful. Khadr was abused, and was never rehabilitated according to the Optional Protocol to the UN Convention on the Rights of the Child on the involvement of children in armed conflict, which stipulates that juvenile prisoners — those under 18 at the time their alleged crime takes place — “require special protection,” and obliges its signatories to promote “the physical and psychosocial rehabilitation and social reintegration of children who are victims of armed conflict.”

In addition, Khadr was put forward for a trial by military commission — a war crimes trial — even though he was a child at the time of his capture, even though it is not clear that he had killed a US soldier by throwing a grenade, as alleged, and even though the entire premise of the trial was wrong.

It was deeply disturbing that the US government was willing to suggest to the world that those who raise arms against US forces in wartime, and in a country where the US is engaged in a war, can actually be defined as war criminals, even if their only target is members of the US military.

And yet this, of course, is exactly what happened to Khadr, when, a year ago, he signed the plea deal that was supposed to guarantee his release, in which he admitted to being an “alien unprivileged enemy belligerent,” who had no right, under any circumstances, to engage in combat with US military forces, and who, as a result of doing so, was a war criminal.

That was shocking enough, and it was no more reassuring that, on October 31, 2010, Khadr was given a 40-year sentence by a military jury after a week of hearings at Guantánamo. This was supposed to reassure supporters of Guantánamo and the military commissions that Obama was tough on terrorism, while the plea deal was supposed to send the message to critics of Guantánamo that he was fair. However, from the point of view of fairness and the law, the entire process was an abomination, and represents a low point for US justice and for any reputation for fairness that President Obama hoped to bring to his Presidency.

For Khadr, the plea deal was obviously supposed to be a lifeline, which is what makes the news from Canada so upsetting. The Canadian government’s behavior has been shameful ever since Khadr was first captured. Intelligence agents were sent to interrogate him, even though that was a clear violation of his rights, given the disturbing circumstances of his confinement in Guantánamo, and a series of challenges in the Canadian courts culminated in the Supreme Court ruling that the government had indeed failed to protect Khadr’s rights, although the Court refused to order the government to seek his return, and the government responded by ignoring the ruling.

Now, however, the signs are that the Canadian government looks set to fail Khadr again. Canada.com noted that the closest the government had come to guaranteeing that Khadr would be coming back to Canada to serve the rest of his sentence was “a diplomatic note between US and Canadian officials,” which stated that the Harper government  was “inclined to favourably consider” a request for Khadr’s transfer back to the country of his birth.

Several weeks ago, Khadr’s Canadian lawyers confirmed that “the transfer process had been initiated,” but Michael Patton, a spokesman for Public Safety Minister Vic Toews, said that securing the return of a prisoner from another country was a “big process.” He explained that the Correctional Service had to “determine whether the applicant is eligible for a transfer,” then the government holding the prisoner had to agree to it, and then the Correctional Service had to “put together a recommendation to the Minister who must review and approve it.”

Patton said, “These files normally take about 18 months to come to a decision,” and Canada.com claimed that Khadr’s case was “unlikely to be expedited or treated differently,” even though the government has obviously had an entire year to prepare for Khadr’s return.

In the Globe and Mail, Paul Koring discussed other options, noting that the Harper government could “approve and quickly facilitate” Khadr’s return, possibly within months, if he were to “agree to abandon any further constitutional challenges,” according to “lawyers familiar with his case.”

On the other hand, some lawyers told the Globe and Mail that Khadr could be free “in less than a year if he takes his case again to the Canadian courts.” These lawyers believe Khadr could challenge both his war crimes conviction and the sentence he was given, on the basis that “both were illegal under international law.”

Koring noted that a constitutional challenge by Khadr “could embarrass the government and force public disclosure of the role its agents played” in his interrogations at Guantánamo, although it would also “cast him again in the spotlight,” which might be damaging for his cause in Canada. This is because part of the basis for Khadr’s shameful treatment has been that many Canadians have been prepared to ignore his immense ill-treatment by making him the object of punishment for the perceived sins of his father, Ahmed Khadr, who allegedly raised funds for Osama bin Laden.

As Paul Koring also noted, “the Harper government has so far shown no interest in getting Mr. Khadr freed or back in Canada.” This shameful situation must end as soon as possible, and Khadr, I believe, should be freed on his return to Canada, as a gesture of support from a government that shamefully abandoned him for the best part of a decade.

Khadr’s release from Guantánamo will also focus attention once more on what should be an abiding source of shame for Barack Obama, but has been largely overlooked — the continued presence of 171 prisoners at Guantánamo, even though the government conceded, after a year-long review in 2009, that it did not wish to hold over half of these men.

With their release blocked by Congress, and by judges in the Court of Appeals in Washington D.C., who have gutted habeas corpus of all meaning when it comes to the Guantánamo prisoners, Omar Khadr’s release would also remind the world of some of these other men, unjustly overlooked as the 10th anniversary of the opening of Guantánamo approaches.

Originally published on the website of the Future of Freedom Foundation.

Andy Worthington, a regular contributor to The Public Record, is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison and the definitive Guantánamo prisoner list, published in March 2009. He maintains a blog at andyworthington.co.uk.

mam Anwar al-Awlaki in Yemen October 2008. Photo: Muhammad ud-Deen/Wikimedia.

What a strange and alarming place we’re in, when the US government, under a Democratic President, kills two US citizens it dislikes for their thoughts and their words, without formally charging them with any crime, or trying or convicting them, using an unmanned drone directed by US personnel many thousands of miles away.

And yet, that is what happened on Friday, when Anwar Al-Awlaki (aka al-Awlaqi, or Aulaqi) and Samir Khan, both US citizens, were killed in a drone strike in Yemen, along with several companions. Al-Awlaki, an imam who had left the US in 2002, had aroused the US government’s wrath because his anti-American sermons were in English, and readily available online, and because he openly advocated violence against the United States.

It has also been widely reported that he apparently met three of the 9/11 hijackers, that he had been in email contact with Major Nidal Malik Hasan, the sole suspect in the killing of 13 military personnel at Fort Hood, in Texas, in November 2009, who he later reportedly described as a “hero,” and that he was allegedly involved in planning the failed plane bombing on a flight into Detroit on Christmas Day 2009, for which a Nigerian, Umar Farouk Abdulmutallab, was arrested.

In December 2009, when the US first claimed to have killed al-Awlaki in a drone strike that killed 30 other people — all, conveniently, described as “suspected militants” by Yemeni security and government sources — the Washington Post reported that US officials said that al-Awlaki had been “moving up the ranks” of Al-Qaeda in the Arabian Peninsula, “having recently been promoted to regional commander.” However, the officials also “described him less as an operational leader than an inspirational one, whose contacts with members took place largely online.”

This is an important distinction, but it is one that has largely been overlooked when al-Awlaki has been discussed in the mainstream media in the US, even though Americans, through the First Amendment to the US Constitution, are supposed to be uniquely placed to understand the difference between free speech and action.

The other US citizen to be killed on Friday, Samir Khan, was also deeply disliked by the US government. A former “Internet Jihadist” in the US, as the New York Times revealed in an interview with him in 2007, he moved to Yemen in 2009, where he became the editor of Al-Qaeda in the Arabian Peninsula’s online English language magazine, Inspire. Despite this, he, unlike al-Awlaki, had not even been put on a hit list at the time of his death, relegating him to the same kind of non-status as the foreigners — Afghans, Pakistanis and others — who are regularly killed by drone strikes in Pakistan.

There are three main problems with the killings — one, as hinted at above, involves the use of drones in general, the second involves the legality and wisdom of assassinations in other countries, and the third involves the legality and wisdom of assassinating US citizens.

Are drone killings legal?

In the first instance, the killings mark an expansion of the US government’s program of using remotely-controlled drones to kill its enemies — or its perceived enemies — which is pushing at the limits of what can legitimately be regarded as warfare — if, indeed, it has not already exceeded those limits.

No one seems to have any accurate estimate of how many people have died in the drone killings, which have been taking place since 2004, but whose use has increased dramatically under President Obama, although there have reportedly been at least 270 attacks, and anywhere between 1,600 and 2,600 casualties. Moreover, in July 2009, Daniel L. Byman, a Senior Fellow at the Saban Center for Middle East Policy, noted in an article for the Brookings Institution that, according to estimates, “for every militant killed, 10 or so civilians also died,” adding that, “Beyond the humanitarian tragedy incurred, civilian deaths create dangerous political problems.”

Byman also noted that, in Pakistan, the last thing the Pakistani government needs are American efforts that backfire on them, which, of course, may also be fatally counter-productive for American aims. He quoted counterterrorism expert David Kilcullen, who said at a conference on Pakistan’s future in Washington D.C. in 2009, “When we intervene in people’s countries to chase small cells of bad guys, we end up alienating the whole country and turning them against us.”

In October 2009, Philip Alston, the UN Special Rapporteur on Extrajudicial Executions, questioned whether Obama’s drone-killing program was legal. Alston told a conference, “My concern is that drones/Predators are being operated in a framework which may well violate international humanitarian law and international human rights law.” Having submitted a report to the UN General Assembly (PDF), he said, “The onus is really on the United States government to reveal more about the ways in which it makes sure that arbitrary extrajudicial executions aren’t in fact being carried out through the use of these weapons.”

Alston highlighted three particular problems, stating, “I would like to know the legal basis upon which the United States is operating, in other words … who is running the program, what accountability mechanisms are in place in relation to that.” He also asked for disclosure of the “precautions the United States is taking to ensure that these weapons are used strictly for purposes consistent with international humanitarian law,” and also asked “what sort of review mechanism” there was “to evaluate when these weapons have been used.”

No answer was forthcoming, and the program not only continued, but expanded into other countries — including, of course, Yemen. However, although the Obama administration is obviously not troubled by what it is doing, a warning was sounded in the Washington Post on October 2 by John Bellinger, legal adviser for the State Department from 2005 to 2009.

Bellinger wrote that, although the drone program had been “highly effective in killing senior al-Qaeda leaders,” the administration “needs to work harder to explain and defend its use of drones as lawful and appropriate — to allies and critics — if it wants to avoid losing international support and potentially exposing administration officials to legal liability.”

As he proceeded to explain, the justification for the program (as with the occupation of Afghanistan, illegal wiretapping and the detention program at Guantánamo) is the Authorization for Use of Military Force, passed by Congress the week after the 9/11 attacks, which empowered the President to use “all necessary and appropriate force” against nations, organizations or persons who planned, committed or aided the 9/11  attacks. Bellinger also noted that the US government “believes that drone strikes are permitted under international law and the United Nations Charter as actions in self-defense, either with the consent of the country where the strike takes place or because that country is unwilling or unable to act against an imminent threat to the United States.”

As he also noted, however, “the US legal position may not satisfy the rest of the world,” because no other government “has said publicly that it agrees with the US policy or legal rationale for drones,” and it would be wise for President Obama “to try to build a broader international consensus.”

Is Obama’s assassination program legal and/or appropriate?

Closely related to the question of the drone program’s legality are questions about the Obama administration’s reintroduction of an assassination program. A source of huge internal wrangling in the Reagan, Bush Sr. and Clinton administrations, assassination was largely ignored by the Bush administration, which became obsessed with a global web of torture prisons and “extraordinary rendition,” sending its alleged terrorism-related enemies to be tortured or “disappeared” in other countries. However, as Obama demonstrated in May, with the killing of Osama bin Laden in Pakistan, assassination by death squad was another part of his contentious anti-terror arsenal.

As with the drone program, international criticism of the assassination of Osama bin Laden was muted to non-existent. In his Washington Post op-ed, John Bellinger accurately noted that “European allies, who vigorously criticized the Bush administration for asserting the unilateral right to use force against terrorists in countries outside Afghanistan, have neither supported nor criticized reported US drone strikes in Pakistan, Yemen and Somalia. Instead, they have largely looked the other way, as they did with the killing of Osama bin Laden.”

While questions about the legality of killing bin Laden are likely to resurface the more assassinations take place, the problem is also, as with the drone strikes, that it might be hugely counter-productive politically, further inflaming tensions in Pakistan or Yemen, for example, where military options cannot possibly be the only measure of success, as battles for hearts and minds also need to be won. As Daniel Byman wrote about the use of drones in Pakistan, “The real answer to halting al-Qaeda’s activity in Pakistan will be the long-term support of Pakistan’s counterinsurgency efforts,” and, for Yemen, a similar answer must apply.

Is the assassination of US citizens legal and/or appropriate?

Moving from the assassination program to the killing of Americans in particular, the addition of US citizens to the list of targets could hardly be more contentious had it been designed by George W. Bush and Dick Cheney. As Guantánamo shows, Americans are supposed to be protected from the excesses of their own government, while foreigners have no protection whatsoever — although John Walker Lindh, judicially sacrificed as the “American Taliban,” was excluded in the early days of the “war on terror,” when he received a 20-year sentence as part of a punitive plea deal that involved him agreeing not to talk about the torture he had suffered at the hands of US soldiers.

After Lindh, the only other precedents for abusing Americans as though they were foreigners are the cases of the three Americans imprisoned as “enemy combatants” on the US mainland under George W. Bush — Yaser Hamdi, Ali al-Marri and Jose Padilla. Hamdi, born in the US but living in Saudi Arabia since he was a child, was held briefly at Guantánamo and then transferred to the US, where he was tortured and then released, and al-Marri was a legal US resident who was also tortured as an “enemy combatant,” although he was moved into the criminal justice system under Obama, and tried and convicted of charges relating to terrorism in 2009.

Until last Friday’s assassinations in Yemen, the most alarming case of an American stripped of his rights in the “war on terror” was Jose Padilla, a US citizen who was held by his own government for three and half years in chronic isolation until he lost his mind, and then transferred into the criminal justice system, where he was tried and convicted for little more than a thought crime, and sentenced to 17 years and four months in prison — a sentence that, two weeks ago, an appeal court judged too lenient.

Technically, al-Awlaki’s inclusion on a target list maintained by the US military’s shadowy Joint Special Operations Command (JSOC), and the decision, in April 2010, to add him to “a list of suspected terrorists the CIA is authorized to kill,” which “required special approval from the White House” (as the Washington Post described it), is legal, because, in December last year, Judge John D. Bates of the District Court in Washington D.C. dismissed a lawsuit contesting President Obama’s “targeted killing” policy, which was submitted on behalf of al-Awlaki’s father.

Judge Bates ruled that “the plaintiff did not have legal standing to challenge the targeting of his son,” and also concluded, alarmingly, “that there are circumstances in which the Executive’s unilateral decision to kill a US citizen overseas is ‘constitutionally committed to the political branches’ and judicially unreviewable.”

This was unacceptable to the ACLU and the Center for Constitutional Rights, acting on behalf of al-Awlaki’s father, who asked three particular questions that I found important:

Outside of the context of armed conflict, should it not be the case that the government can only carry out the “targeted killing” of an American citizen “as a last resort to address an imminent threat to life or physical safety”?

Why did the court not order the government to disclose the legal standard it uses to place US citizens on government kill lists?

How is it that judicial approval is required when the United States decides to target a US citizen overseas for electronic surveillance, but that, according to defendants, judicial scrutiny is prohibited when the United States decides to target a US citizen overseas for death?

These questions were unanswered, and they remain unanswered now, prompting John Bellinger to recommend that the Obama administration “should provide more information about the strict limits it applies to targeting and about who has been targeted,” and rendering more chilling the words of Jameel Jaffer, Deputy Legal Director of the ACLU, back in December, when, after Judge Bates’ ruling, he said:

If the court’s ruling is correct, the government has unreviewable authority to carry out the targeted killing of any American, anywhere, whom the president deems to be a threat to the nation. It would be difficult to conceive of a proposition more inconsistent with the Constitution or more dangerous to American liberty.

As Jaffer also noted:

It’s worth remembering that the power that the court invests in the president today will be available not just in this case but in future cases, and not just to the current president but to every future president. It is a profound mistake to allow this unparalleled power to be exercised free from the checks and balances that apply in every other context. We continue to believe that the government’s power to use lethal force against American citizens should be subject to meaningful oversight by the courts.

In America today, however, when the courts have demonstrated that they are generally even more unwilling to challenge executive power when wielded by President  Obama than they were under George W. Bush, one of the bizarre results is that the approval for the killing of Anwar al-Awlaki really did take place in an executive bubble, apparently approved by a secret Justice Department opinion, but unrelated to what anyone else thinks, not just in America but anywhere else in the world. And this, I think, is as troubling as the assassination program itself and the new policy of waging war remotely, which appear to be permanently evading scrutiny.

Originally published the Future of Freedom Foundation.

Andy Worthington, a regular contributor to The Public Record, is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison and the definitive Guantánamo prisoner list, published in March 2009. He maintains a blog at andyworthington.co.uk.