On Wednesday evening, the Associated Press reported that, in court filings, Justice Department lawyers stated that Attorney General Eric Holder has decided that a sixth Guantánamo prisoner — an Afghan named Obaidullah — will be put forward for trial by Military Commission.
On Nov. 13, when Holder announced that five prisoners — including Khalid Sheikh Mohammed — would face federal court trials for their alleged involvement in the 9/11 attacks, he also announced that five other men, previously charged in the Bush administration’s Military Commissions, would be tried in a revamped version of the Commissions that the administration and Congress concocted over the summer.
Notwithstanding the weaknesses of the Military Commission trial system (some of which emerged in its first faltering outing last month), and the very real fear that it is being used by the Obama administration as a second-tier system of justice, the decision to charge Obaidullah is particularly dispiriting, as he is so clearly a peripheral character of such insignificance that putting him up for a war crimes trial risks ridicule.
As I explained in September 2008, when he became the 18th prisoner to be put forward for a trial by Military Commission, he was:
charged with “conspiracy” and “providing material support to terrorism,” based on the thinnest set of allegations to date: essentially, a single claim that, “[o]n or about 22 July 2002,” he “stored and concealed anti-tank mines, other explosive devices, and related equipment”; that he “concealed on his person a notebook describing how to wire and detonate explosive devices”; and that he “knew or intended” that his “material support and resources were to be used in preparation for and in carrying out a terrorist attack.”
As I also explained:
It doesn’t take much reflection on these charges to realize that it is a depressingly clear example of the US administration’s disturbing, post-9/11 redefinition of “war crimes,” which apparently allows the US authorities to claim that they can equate minor acts of insurgency committed by a citizen of an occupied nation with terrorism.
This was not all. In his Combatant Status Review Tribunal and Administrative Review Boards at Guantánamo (the military review boards established to ascertain whether he had been correctly designated as an “enemy combatant,” and whether he still posed a threat to the US), he made it clear that he had made false allegations against himself and another Afghan prisoner still held — a shopkeeper named Bostan Karim — because of the abuse he had suffered, at the hands of US forces, in a forward operating base in Khost and in the main US prison in Afghanistan, at Bagram airbase.
The following exchange, from his ARB in 2005, when he explained that he had been “forced” to make false confessions about Karim while held in Bagram is particularly enlightening:
Board Member: Who forced you to say things?
Board Member: How did they force you?
Detainee: The first time when they 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.
Board Member: Were they wearing uniforms?
Detainee: Yes … 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.
Back in September 2008, I concluded my article by asking, “So tell me, after reading this: does charging Obaidullah for ‘war crimes’ look like justice?”
With the news that Obaidullah is to be charged again, when he is not actually accused of harming a single American, and when he may, in fact, have been tortured, through sleep deprivation and “Palestinian hanging,” to produce false confessions against himself and at least one other prisoner, leads me not only to repeat the question, but to actively call for the open mockery of Attorney General Eric Holder and the lawyers and bureaucrats in the Justice Department and the Pentagon who thought that reviving the charges against him was a good idea.
Editor’s note: On Thursday, the American Civil Liberties Union criticized the Obama administration’s decision to use the military commissions to prosecute Obaidullah.
In a statement, Jameel Jaffer, director of the ACLU’s National Security Project said it’s “disappointing that the [Obama] administration has chosen to prosecute another Guantánamo detainee in a discredited system that is designed to ensure convictions rather than fair trials.”
“While Congress recently improved the military commissions system in certain respects, the system still fails to provide the procedural rights that are guaranteed by U.S. and international law,” Jaffer said. “The military commissions system is also unnecessary, because the federal courts are well-equipped to handle complicated terrorism cases and protect classified information without compromising the rights of the accused.
“The military commissions have contributed to Guantánamo’s image as an icon of injustice, and the Obama administration should not be perpetuating them. If Guantánamo detainees have committed real crimes, they should be prosecuted in real courts.”
See the following for a sequence of articles dealing with the stumbling progress of the Military Commissions: The reviled Military Commissions collapse (June 2007), A bad week at Guantánamo (Commissions revived, September 2007), The curse of the Military Commissions strikes the prosecutors (September 2007), A good week at Guantánamo (chief prosecutor resigns, October 2007), The story of Mohamed Jawad (October 2007), The story of Omar Khadr (November 2007), Guantánamo trials: where are the terrorists? (February 2008), Six in Guantánamo charged with 9/11 attacks: why now, and what about the torture? (February 2008), Guantánamo’s shambolic trials (ex-prosecutor turns, February 2008), Torture allegations dog Guantánamo trials (March 2008), African embassy bombing suspect charged (March 2008), The US military’s shameless propaganda over 9/11 trials (April 2008), Betrayals, backsliding and boycotts (May 2008), Fact Sheet: The 16 prisoners charged (May 2008), Afghan fantasist to face trial (June 2008), 9/11 trial defendants cry torture (June 2008), USS Cole bombing suspect charged (July 2008), Folly and injustice (Salim Hamdan’s trial approved, July 2008), A critical overview of Salim Hamdan’s Guantánamo trial and the dubious verdict (August 2008), Salim Hamdan’s sentence signals the end of Guantánamo (August 2008), Controversy still plagues Guantánamo’s Military Commissions (September 2008), Another Insignificant Afghan Charged (September 2008), Seized at 15, Omar Khadr Turns 22 in Guantánamo (September 2008), Is Khalid Sheikh Mohammed Running the 9/11 Trials? (September 2008), two articles exploring the Commissions’ corrupt command structure (The Dark Heart of the Guantánamo Trials, and New Evidence of Systemic Bias in Guantánamo Trials, October 2008), The collapse of Omar Khadr’s Guantánamo trial (October 2008), Corruption at Guantánamo (legal adviser faces military investigations, October 2008), An empty trial at Guantánamo (Ali Hamza al-Bahlul, October 2008), Life sentence for al-Qaeda propagandist fails to justify Guantánamo trials (al-Bahlul, November 2008), 20 Reasons To Shut Down The Guantánamo Trials (profiles of all the prisoners charged, November 2008), How Guantánamo Can Be Closed: Advice for Barack Obama (November 2008), More Dubious Charges in the Guantánamo Trials (two Kuwaitis, November 2008), The End of Guantánamo (Salim Hamdan repatriated, November 2008), Torture, Preventive Detention and the Terror Trials at Guantánamo (December 2008), Is the 9/11 trial confession an al-Qaeda coup? (December 2008), The Dying Days of the Guantánamo Trials (January 2009), Former Guantánamo Prosecutor Condemns Chaotic Trials (Lt. Col. Vandeveld on Mohamed Jawad, January 2009), Torture taints the case of Mohamed Jawad (January 2009), Bush Era Ends with Guantánamo Trial Chief’s Torture Confession (Susan Crawford on Mohammed al-Qahtani, January 2009), Chaos and Lies: Why Obama Was Right to Halt The Guantánamo Trials (January 2009), Binyam Mohamed’s Plea Bargain: Trading Torture For Freedom (March 2009).
And for a sequence of articles dealing with the Obama administration’s response to the Military Commissions, see: Don’t Forget Guantánamo (February 2009), Who’s Running Guantánamo? (February 2009), The Talking Dog interviews Darrel Vandeveld, former Guantánamo prosecutor (February 2009), Obama’s First 100 Days: A Start On Guantánamo, But Not Enough (May 2009), Obama Returns To Bush Era On Guantánamo (May 2009), New Chief Prosecutor Appointed For Military Commissions At Guantánamo (May 2009), Pain At Guantánamo And Paralysis In Government (May 2009), My Message To Obama: Great Speech, But No Military Commissions and No “Preventive Detention” (May 2009), Guantánamo And The Many Failures Of US Politicians (May 2009), A Child At Guantánamo: The Unending Torment of Mohamed Jawad (June 2009), A Broken Circus: Guantánamo Trials Convene For One Day Of Chaos (June 2009), Obama Proposes Swift Execution of Alleged 9/11 Conspirators (June 2009), Predictable Chaos As Guantánamo Trials Resume (July 2009), David Frakt: Military Commissions “A Catastrophic Failure” (August 2009),
9/11 Trial At Guantánamo Delayed Again: Can We Have Federal Court Trials Now, Please? (September 2009), Torture And Futility: Is This The End Of The Military Commissions At Guantánamo? (September 2009), Resisting Injustice In Guantánamo: The Story Of Fayiz Al-Kandari (October 2009), Military Commissions Revived: Don’t Do It, Mr. President! (November 2009), The Logic of the 9/11 Trials, The Madness of the Military Commissions (November 2009), Rep. Jerrold Nadler and David Frakt on Obama’s Three-Tier Justice System For Guantánamo (November 2009), Guantánamo: Idealists Leave Obama’s Sinking Ship (November 2009).
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.