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

This exclusive report was originally published by Truthout on March 30, 2010. It was written by investigative reporter Jason Leopold.

The Justice Department has quietly recanted nearly every major claim the Bush administration made about Abu Zubaydah the alleged al-Qaeda leader who was the first suspected terrorist subjected to the torture of waterboarding and other White House-approved “enhanced interrogation techniques.”

In a federal court filing, Justice backed away from the Bush administration’s statements that Zubaydah was the No. 2 or No. 3 official in al-Qaeda who had helped plan the 9/11 attacks, as well as even earlier claims from the Clinton administration that he was directly involved in planning the 1998 embassy bombings in East Africa.

The US government’s retreat underscores yet another problem with President George W. Bush’s use of torture. Besides its illegality and immorality, torture can be applied to suspected terrorists who have been falsely identified and who thus don’t possess the expected information, which can lead frustrated interrogators to escalate the torture until the subject provides something, whether true or not.

Such false expectations appear to have been a factor in the case of Zubaydah, who was captured in Pakistan on March 28, 2002. He appeared to respond cooperatively to FBI interrogators using “rapport-building” techniques, but his failure to supply details that the CIA had anticipated led the agency to obtain high-level permission to subject him to the near-drowning experience of waterboarding and other torture techniques.

After those techniques were cleared by the Justice Department’s Office of Legal Counsel in mid-summer 2002 – and were sanctioned by Vice President Dick Cheney and other senior Bush administration officials – CIA interrogators applied the methods to Zubaydah In their frustration, they ultimately waterboarded him 83 times before concluding that many of his claims of ignorance were truthful.

In recent months, former Bush speechwriter Marc Thiessen has been on a public relations campaign promoting his book, “Courting Disaster,” in which he defended the torture of Zubaydah, claiming that he reviewed classified intelligence that revealed Zubaydah’s torture produced actionable intelligence that thwarted imminent plots against the United States.

The Justice Department has now backed away from the Bush administration’s more extreme claims in a 109-page court document filed in US District Court in Washington last September in response to 213 discovery requests from Zubaydah’s attorneys in his habeas corpus case, which demands evidence to support his continued detention at Guantanamo Bay, Cuba.

In the filing, the Justice Department asked the judge presiding over the case to deny virtually every discovery request sought by Zubaydah’s attorneys, explaining, in some instances, that the US government no longer relied upon the explosive allegations that President Bush and other top officials made about Zubaydah after he was captured and tortured in 2002.

For instance, the document refutes Bush’s direct statements about Zubaydah, including a claim that he was one of al-Qaeda’s “top operatives plotting and planning death and destruction on the United States.”

For the first time, the government officially admitted that Zubaydah did not have “any direct role in or advance knowledge of the terrorist attacks of September 11, 2001,” and was neither a “member” of al-Qaeda nor “formally” identified with the terrorist organization.

Retreat’s Impact

The government’s retreat also could add to the mounting criticism of US Appeals Court Judge Jay Bybee, who in August 2002 as head of the Office of Legal Counsel signed memos authorizing the torture techniques that were applied to Zubaydah and other “high-value” detainees.

At the time, Bybee asserted, based on information he received from the CIA, that Zubaydah “is one of the highest ranking members of the al-Qaeda terrorist organization,” “has been involved in every major terrorist  operation  carried out by  al-Qaeda,” and was “one of the planners of  the September 11 attacks.” Bybee approved the harsh interrogation as necessary to thwart pending attacks on US interests, which the CIA claimed Zubaydah knew about.

While backing away from the extravagant claims of the Bush era, the Obama administration says Zubaydah should still be detained based on his “actions” as an “affiliate” of al-Qaeda.

The Justice Department filing alleged that Zubaydah “supported enemy forces and participated in hostilities” and “facilitat[ed] the retreat and escape of enemy forces” after the US invaded Afghanistan in October 2001.

The government acknowledged that its case against Zubaydah is based entirely on the first six volumes of his diaries that he wrote beginning in 1992 and an undated “propaganda video [Zubaydah] recorded before his capture in which [he allegedly] appears on camera expressing solidarity with Usama Bin Laden and al-Qaida.”

The government’s new charges, according to the court filing, include allegations that “[Zubaydah] was present in [the Afghan city of] Kandahar in November 2001, and a number of prominent terrorist figures converged on Kandahar around the same time,” including self-professed 9/11 mastermind Khalid Sheikh Mohammed. But the government does not “specify whether any of these figures met during that that time period.”

Zubaydah’s attorneys say the new allegations are baseless and have asked the government for “evidence that would undermine an ‘insinuation that [Zubaydah's] presence in Kandahar … was related to the presence of known terrorists in the city’ is vague and insufficiently specific and is not supported by any allegations about whether [Zubaydah] in fact was present in Kandahar or for what purpose.”

Zubaydah’s attorneys claim that “the persons whom [Zubaydah] assisted in escaping Afghanistan in 2001 included ‘women, children, and/or other non-combatants’” and that the government has evidence to support those assertions. The lawyers also questioned the government’s history of falsehoods about their client.

“The Government’s accounts frequently have been at variance with the actual facts, and the government has generally been loath to provide the facts until forced to do so,” said Zubaydah’s attorney, Brent Mickum, in an interview.

“When the Government was forced to present the facts in the form of discovery in Zubaydah’s case, it realized that the game was over and there was no way it could support the Bush administration’s baseless allegations. So it changed the charges.”

No Formal Allegiance

In seeking to block Zubaydah’s discovery motions, the Justice Department also said the government was no longer contending that Zubaydah “was a ‘member’ of al-Qaida in the sense of having sworn bavat (allegiance) or having otherwise satisfied any formal criteria that either [Zubaydah] or al-Qaida may have considered necessary for  inclusion in al-Qaeda.

“Nor is the government detaining [Zubaydah] based on any allegation that [Zubaydah] views himself as part of al-Qaida as a matter of subjective personal conscience, ideology or worldview. Rather, [the government's] detention of [Zubaydah] is based on conduct and actions that establish [Zubaydah] was ‘part of’ hostile forces and ‘substantially supported’ those forces.”

That retreat contradicts initial claims made by senior Bush administration officials, including Defense Secretary Donald Rumsfeld, who described Zubaydah as a “close associate of [Osama bin Laden], and if not the number two, very close to the number two person in the organization. I think that’s well established.”

Even after Zubaydah’s interrogators apparently apologized to him for that mistaken impression – at his Combatant Status Review Tribunal hearing, Zubaydah said “they told me sorry we discover that you are not number three [in al-Qaeda], not a partner, even not a fighter” – the Bush administration continued to hype his role.

John Bellinger, legal adviser to Secretary of  State Condoleezza Rice, said during a June 2007 briefing about Guantanamo Bay detainees that Zubaydah, who was transferred to Guantanamo in 2006, helped  plan the 9/11 attacks and was “extremely dangerous.”

But the Justice Department now says “the Government has not contended in this [habeas] proceeding that [Zubaydah] had any direct role in or advance knowledge of the terrorist attacks of September 11, 2001, so [to] the extent that this request seeks information ‘tending to show … that [Zubaydah] did not know of the planned attacks of 9/11′, the request seeks evidence about contentions the Government has not made.”

The Justice Department also asked US District Court Judge Richard Roberts, who is presiding over the  habeas case, to deny defense requests for evidence that would “undermine”  government claims that Zubaydah worked on bin Laden’s “military and security plan to confront  an American counterattack” in Khost,  Afghanistan, after 9/11.

“The Government does not rely on any contention that [Zubaydah] did this work as an ‘al-Qaida’ deputy or because he was subject to al-Qaida command,” according to the court document.

Blocking a KSM Interview

And the Justice Department opposed Zubaydah’s lawyers’ request to question Khalid Sheikh Mohammed about whether he met Zubaydah, when the two were allegedly in Kandahar at the same time in November 2001.

“It is difficult to imagine how any answer from Khalid Sheikh Mohammed would substantially help [Zubadyah],” the government filing said. “Even if Khalid Sheikh Mohammed were to say he did not meet with Petitioner while they were in Kandahar, the fact that [Zubaydah's] presence in Kandahar coincided with the presence of major terrorist figures in Kandahar would still weigh in favor of [his continued] detention.”

According to lawyer Mickum, the government’s “entirely new position” about Zubaydah was revealed last year to in a 44-page Factual Return that included more than 2,000 pages of exhibits.

“I’m not surprised at all that the Government has dropped the old charges against our client and is alleging new charges against him,” Mickum said in an interview. “That is their tried-and-true modus operandi. That’s exactly what they did with my client Bisher al Rawi. He was initially charged with associating with a known al-Qaeda figure in London.

“Unfortunately, Bisher was associating with him at the express request of Britain’s MI5 [intelligence service]. After we established that he [Bisher] worked for MI5, the US simply changed the charges against him, alleging that he had terrorist training in Bosnia and Afghanistan.

“Once again, we were able to show those charges were utterly bogus when we proved that Bisher had never left England from 1998 until his fateful business trip to Africa, where he was arrested by the CIA, rendered to the ‘Dark Prison’ in Afghanistan and tortured, tortured at Bagram Air Force base and tortured in Guantanamo.

“What all these cases have in common is torture, and [Zubaydah's] case has that in spades. Given, the government’s history, it is not likely they would simply let him go and apologize. No, when their case falls apart, they re-jigger the evidence, and come up with new charges and [say] ‘we will defend the new charges with the same zeal we defended the earlier bogus charges.’”

Zubaydah’s attorneys argued in his initial petition for habeas corpus filed in February 2008 that he was not a member of al-Qaeda, that he had no knowledge of any terrorist operations, and that the military camp he was alleged to be affiliated with, Khaldan, was closed by the Afghan Taliban after refusing to let it go under the formal control of bin Laden and al-Qaeda.

“We have never deviated from that position, and now the government admits that we were correct all along,” Mickum said.

Indeed, the Justice Department’s response agrees that Khaldan was “organizationally and operationally independent” of al-Qaeda’s camps. The filing also backed off other claims made by Bush administration officials that Zubaydah knew the identities of specific individuals who trained at Khaldan and later went on to al-Qaeda-operated camps and allegedly took part in terrorist activities.

“The Government has not contended in this proceeding that Petitioner selected or knew the identities of specific persons who were selected to leave Khaldan for training at al-Qaida camps,” the filing states.

Undermining 9/11 Report

The US government’s new position also undercuts the 9/11 Commission’s report as it relates to Zubaydah. The report called him the leader of Khaldan.

The 9/11 report added that Zubaydah was a “major figure” in the “Millennium plot,” claiming he was a mastermind behind a plan to bomb a hotel in Jordan and Los Angeles International Airport.

The 9/11 report cited several  intelligence memoranda from then-counterterrorism czar Richard Clarke that Zubaydah was planning “a series of major terrorist attacks” on Israeli and possibly US targets and was working closely with bin Laden. Clarke declined numerous requests for comment.

Terrorist suspicions about Zubaydah predated the 9/11 attacks. Indeed, in the infamous Aug. 6, 2001, Presidential Daily Brief titled, “Bin Laden Determined to Strike in US,” he was identified as bin Laden’s “lieutenant” and alleged to have “helped facilitate” the plot to detonate a bomb at LAX.

FBI officials obtained that information from Ahmed Ressam, who was convicted in the LAX plot in April 2001. In exchange for a lighter sentence, Ressam cooperated with the government and identified alleged terrorists, including Zubaydah, who Ressam said was a key figure in al-Qaeda, ran Khaldan and had close connections to bin Laden. Ressam also said Zubdaydah told him in 1998 that, independent of bin Laden, he was preparing his own attack against the United States. Ressam later recanted his statements.

When asked about what the 9/11 Commission was told regarding Zubaydah, Mickum suggested that the panel was lied to by the CIA.

“After torturing our client, the CIA knew he was never a member of al-Qaeda and that he had no knowledge of any al-Qaeda terrorist activities,” Mickum said. “And this fact was confirmed after other members of al-Qaeda like [Khalid Sheikh Mohammed] and the [alleged mastermind of the USS Cole bombing] al-Nashiri were tortured.”

In an interview last year, Jack Cloonan, a former FBI special agent assigned to the agency’s elite bin Laden unit, said the CIA and the Bush administration were flat wrong in designating Zubaydah as a top official in al-Qaeda.

“To cast him and describe him as the al-Qaeda emir or leader for the subcontinent or worse … I think was a mistake. … Based on his age and ethnicity, [he] would [n]ever be brought into the inner circle of al-Qaeda,” Cloonan said.

There was also the question of Zubaydah’s personality. “My partner had a chance to look at a lot of Abu Zubaydah’s diaries [which forms the basis of the government's case], poems and other things that he has written and he said that after reading this you just come away with the feeling that this is a guy who can’t be trusted or be given huge amounts of responsibility.”

Zubaydah began keeping a diary in 1992, after he suffered a severe head injury while fighting communist forces in Afghanistan. The injury left “significantly impaired both his long- and short-term memory,” states a Jan. 14, 2009, motion his attorneys filed related to his diaries.

“Long after his 1992 injury, once [Zubaydah] had recovered the ability to speak and write, he began to keep a diary. It is his memory. Without it, he is lost.”

The diary now appears to be the chief element of the US government’s remaining case against him.

This is the front cover of a pamphlet produced by a Kuwaiti-based anti-Guantanamo organization to try and win the release of two Kuwaiti prisoners, pictured on the cover of the pamphlet, who are detained at the detention facility. The commander of Guantanamo, Rear Adm. David Woods, accused one of the detainee's attorneys of "smuggling" the pamphlet into Guantanamo three weeks before he issued a widely condemned order calling for a review of detainees' legal mail. Image: Lt. Col. Barry Wingard

This report was written by investigative reporter Jason Leopold and originally published on Truthout.

Early last month, Air Force Capt. Michael Schwartz was summoned into the office of Rear Adm. David Woods, the new commander of Guantanamo, and was accused of “smuggling” into the detention facility an anti-Guantanamo pamphlet that featured the photographs of two Kuwaiti detainees, Fayiz al-Kandari and Fawzi al Odha.

Schwartz, a military attorney and a member of al-Kandari’s legal team, was taken aback.

He flatly denied that he or any other lawyer defending al-Kandari “smuggled” the pamphlet into Guantanamo [al Odha is represented by a civilian attorney but the detainee does not speak with him]. Schwartz told Woods that if he was being accused of committing a crime he wanted to speak with an attorney. Woods dismissed Schwartz and the issue was not raised again.

But then several weeks later, Woods issued an order that authorizes a review team to read all legal mail sent to detainees already charged with war crimes, which includes al-Kandari, and other prisoners who are likely to be prosecuted before military commissions to ensure the material they receive from their attorneys does not contain any “contraband,” such as the anti-Guantanamo pamphlet Schwartz was accused of smuggling into the facility.

A group that calls itself the International Anti-Guantanamo Coalition (IAGC), which is made up of Kuwaiti activists, produced the four-page pamphlet. Al-Kandari’s Kuwaiti-based attorney, Adel Abdulhadi, is a also a member of the IAGC. The organization was launched in November with a stated goal of shutting down Guantanamo and securing the release of al-Kandari and al Odha.

The pamphlet is written in Arabic. It contains photographs of the prison and a picture of the Statue of Liberty dressed in orange prison garb, the color detainees wore when they first arrived at the prison facility. Inside the pamphlet is a picture of Lt. Col. Barry Wingard, the lead attorney on al-Kandari’s defense team, who is quoted about his efforts to free al-Kandari and have him turned over to the custody of the Kuwaiti government. There are also photographs and statements from Kuwaiti government officials and al Odah’s father speaking about the need to shut down Guantanamo.

Wingard, a veteran of the Bosnian and Iraq wars, confirmed the allegation Woods leveled against Schwartz during an interview with Truthout. He said the prison commander never told Schwartz whether the pamphlet was found in al-Kandari’s or al Odah’s cell, but he “certainly implied it.”

Wingard said he described the pamphlet to al-Kandari during a recent visit to Guantanamo recently and al-Kandari denied ever having seen it.

“The first thing I said when I found out about this is ‘someone is planting shit’ and trying to pin it on the attorneys,” said Wingard. “To this date, neither Commander Woods nor anyone else from Joint Task Force-Guantanamo has extended the courtesy of addressing me in this matter and has not shared any conclusions of an investigation, if one was ever conducted.”

A Defense Department spokesman did not return calls or emails for comment.

Still, Wingard doesn’t understand how the pamphlet found its way to Guantanamo in the first place. He and Schwartz first laid eyes on it during a trip they took to Kuwait in November to meet with government officials there to discuss ways to try and “facilitate [al-Kandari's] release back to Kuwait’s state of the art rehabilitation center, built at the request of the Bush administration, which is currently vacant,” Wingard said.

“I saw the pamphlets for the first time as they were being unwrapped from cellophane in Kuwait during the first full week of November,” Wingard said. “We were in Kuwait for two weeks, from November 7 through November 21. My attorney was questioned about smuggling it into Guantanamo during the first few days of December. The pamphlet somehow got to Guantanamo before Capt. Schwartz did.”

Wingard said the pamphlet was first distributed to members of the Kuwaiti Parliament and passed out during a protest in front of the US Embassy in Kuwait on November 20 that attracted hundreds of people. He suspects the pamphlet made the rounds inside the embassy and was subsequently sent to Guantanamo by a US official or someone from “another government agency,” a euphemism used to describe the CIA.

“That’s the only explanation for how this document ended up at Guantanamo,” Wingard said. “When I heard about the incident with Capt. Schwartz I thought something is about to happen at Guantanamo. Why else would they plant a document I had just seen come from the printing press in Kuwait?  Now I think we know. “

Wingard believes the issue surrounding the pamphlet is part of a larger effort orchestrated by the US government to sabotage his efforts to secure al-Kandari’s release from Guantanamo, whose petition for habeas corpus was denied two years ago.

Wingard said it started in late October, when Guantanamo officials began to conduct a “cursory review” of all of al-Kandari’s correspondence with him for reasons that are still unknown.

Then, three days before Wingard arrived in Kuwait last November, the Pentagon released to the media what Wingard characterized as a “propaganda video” that showed several detainees apparently enjoying a life of indefinite detention. One of the detainees in the video, he claims, is al-Kandari.

Still, it’s unclear whether the confrontation between Woods and Schwartz played any part in the Guantanamo commander’s decision to implement new and expanded rules authorizing the review of attorney-client communications.

At a pretrial hearing this week in the military commission of Abd Al-Rahim al-Nashiri, the alleged mastermind of the USS Cole, Navy Cmdr. Andrea Lockhart, a member of the team prosecuting the high-value detainee, told a military judge the reason Woods issued the order was because “material that was getting in, like Inspire magazine, that should not have been getting in.”

Inspire magazine was a slick English-language glossy that was produced by an arm of al-Qaeda and edited by Samir Khan, a Pakistani US citizen who was killed in a drone strike in Yemen last September along with Al-Qaeda in the Arabian Peninsula propagandist Anwar al-Awlaki, another US citizen who the US government placed on a kill list.

Lockhart did not disclose whether the issue of Inspire, first published in June 2010, was found inside a detainee’s cell or somewhere else on the prison grounds. Nor did she say whether Joint Task Force-Guantanamo, which operates the prison facility, launched an investigation to determine how the magazine was brought onto the island. However, Lockhart, like Woods, seemed to suggest a defense attorney was the likely suspect.

A Defense Department spokesman did not respond to emails or phone calls seeking answers to those queries either.

Richard Kammen, al-Nashiri’s chief civilian defense counsel, denied that the detainee was the recipient of Inspire.

Mail Review Originally Limited to High-Value Detainees

Woods’ December 27 order expanding the review of legal mail to a larger segment of the Guantanamo prison population in Guantanamo appears to have been sparked by an unknown incident that took place in early October at Camp 7, the top-secret facility where 14 high-value detainees are held, a month before al-Nashiri’s military commission got underway.

Several attorneys representing detainees in habeas corpus cases learned that month that Woods, who had just been named commander of Guantanamo in August, had ordered a search of the cells and that prison staff had been reading, reviewing and confiscating detainees’ legal mail.

The habeas corpus attorneys, all of who hold top-secret security clearance and operate under a separate set of rules related to the review of legal mail, immediately contacted Justice Department lawyers, objecting to what was then an unwritten policy implemented by Woods. The attorneys noted that his policy violated attorney-client privilege. One habeas attorney was assured by Justice Department that the review only applied to the high-value detainee camp and that his client, who is not a high-value detainee, would be spared.

In a statement provided to Truthout October 14, Lt. Col. Joseph Todd Breasseale, a Defense Department spokesman, explained that Woods “directed that a security search be undertaken of detainee cells and materials in Camp 7.”

“This security search is not in response to any particular security threat and does not involve detainees in other [Joint Task Force-Guantanamo] detention facilities,” Breasseale said at the time.

Nine lawyers representing al-Nashiri and other high-value detainees charged with war crimes responded to Woods’ new directive by sending a letter to William Lietzau, deputy secretary of defense for detainee affairs, demanding he order Woods to “cease and desist the seizure, opening, translating, reading and reviewing of attorney-client privileged communications.”

The legal mail issue then arose at the start of al-Nashiri’s tribunal in November. At that time, Navy Cmdr. Thomas Welsh, the senior legal official at Guantanamo, testified that the search of the high-value detainees’ legal mail was necessary so as to ensure it did not contain “incendiary” magazines, such as Inspire, and other material that could pose a security threat. Welsh did not provide further detail about the circumstances that ultimately led to the crackdown in Camp 7 in October.

But Chief Military Commissions Judge James Pohl ordered prison officials to stop reading al-Nashiri’s legal mail. A month later, just a few weeks after Woods accused Schwartz of smuggling the anti-Guantanamo pamphlet into the prison, Woods issued the order expanding the inspection of legal mail, originally limited to Camp 7, to include about 30 other detainees.

Wingard said, in the past, when he sent mail to al-Kandari at Guantanamo it was received by a Defense Department liaison who “printed it off and put it in sealed envelope which was then given to the government.”

“The government would then unseal the envelope in the presence of Fayiz and hand him the confidential mail,” he said.

Now, Woods order states that a team made up of former government lawyers, translators and Department of Defense and law enforcement officials—a privilege review team—under contract to the Pentagon, would conduct the review of the privileged attorney-client communications and it would be done outside the presence of the detainee. He said attorneys must agree to the new rules in writing in order to communicate with their clients. The policy has since been roundly criticized.

“As a lawyer, I believe that this flagrant violation affecting the privacy of attorney-client, is unconscionable and far below the standards that America once stood for,” said Abdulhadi, al-Kandari’s attorney in Kuwait.

The American Bar Association, in a letter sent to Secretary of Defense Leon Panetta, said the policy needs to be immediately reversed.

“The American justice system depends on the essential role of lawyers in counseling their clients,” wrote ABA President Wm. T. (Bill) Robinson III in a letter sent to Secretary of Defense Leon Panetta, urging that Woods’ order be reversed. “This includes providing zealous and effective counsel, even to those accused of heinous crimes against this nation and its people.”

On the heels of Woods’ December 27 order, Marine Col. Jeffrey Colwell, the Pentagon’s chief defense counsel for military commissions, directed military and civilian attorneys defending detainees before military commissions to immediately stop sending mail to the prisoners and not to comply with Woods’ order because it violates the attorney-client privilege and codes of professional conduct.

The issue threatens to derail the tribunals, which Congress and the Obama administration overhauled in 2009. Pohl, the chief military commissions judge, expects to resolve the matter within the next two weeks.

Guard, Attorney Singles Out Interrogators

If “incendiary” reading material was the true catalyst behind Woods’ order, then it’s likely the interrogators who work at Guantanamo are to blame, a former prison guard said.

“They are the only ones who would have the incentive or motive” to distribute a “magazine like Inspire,” said the former guard, who requested anonymity because he is still on active duty.

During interrogations, the former guard said interrogators, as a way of “building rapport with detainees,” would offer prisoners food, books, magazines, pornography, games, pictures, extra recreation time, and cigarettes.

“This has gone on since Guantanamo opened ten years ago,” the former guard said. “These are things the detainees are not supposed to have in their cells and it’s a major source of frustration for the guard force because it violates the standard operating procedure. The guard force follows the SOP and takes it seriously, but the interrogators break the rules in the SOP all the time without telling anyone. The interrogators run the show.”

The former guard said he recalls two incidents within the past couple of years to back up his claims and both involved interrogators allowing two detainees to hang pictures in their cells, which is prohibited, in exchange for their cooperation. One detainee was given a picture of his hometown and another detainee received a picture of his family.

When a guard walked through the prison block to conduct “shake downs of cells” and saw the photographs, they were confiscated and the guard wrote up a report that was sent to his commanding officer. The detainees, according to the former Guantanamo guard, then complained to their interrogators and the photographs were later returned.

Brent Mickum, a habeas corpus attorney who represents Abu Zubaydah, the first high-value detainee captured after 9/11, said he too believes interrogators are responsible for the distribution of magazines like Inspire.

“The idea that an attorney would take into Guantanamo a periodical or a document that he or she knew to be proscribed is outrageous,” said Mickum, who holds a top-secret security clearance. He and other habeas attorneys already operate under a strict protective order that requires all materials they mail and/or bring to the detainees they represent to first be reviewed and approved by a separate privilege review team based in Washington, DC. “No attorney in the 600 or so I have interacted with over the years would ever do such a thing. No attorney would take the chance of jeopardizing the arduous steps they had to go through to obtain security clearance so prisoners could be represented by defense counsel and risk it by bringing in Inspire magazine. The only way such a magazine or document would get to a prisoner is through an interrogator who was trying to reward him for providing intelligence.”

The former guard and two military intelligence officials said as of late 2011 as many as 300 interrogations per month were still taking place at Guantanamo. Wingard said al-Kandari was interrogated as recently as last July by someone believed to be an interrogator about his thoughts on “world politics and Osama Bin Laden’s death.”

Documents declassified and released by the Pentagon in two years ago to former Secretary of Defense Donald Rumsfeld show that in 2003 he said Guantanamo needed to be turned into a “long-term interrogation facility.”

As far as Woods’ new order, Mickum said he’s not surprised.

“We don’t write [Zubaydah] because we’re worried about the Guantanamo staff reading our mail,” Mickum said. “We’ve been working on the assumption for some time that they will and have already looked at our legal mail, regardless if there’s an order in place now allowing just that.”

Wingard said the “desired effect” of Woods’ order is to “taint the attorneys and harvest intelligence from us by reading our legal mail.”

“What’s astounding,” Wingard added, “is that we are military officers with top-secret security clearances and law licenses who go to war with your sons and daughters. What Commander Woods’ order essentially says is that ‘we don’t trust you or the legal system you are sworn to protect.’”

In the meantime, per Colwell’s instructions, Wingard has not been sending mail to al-Kandari, who has been detained at Guantanamo for a decade, or Abdul Ghani, an Afghani Wingard also represents who has been held at the prison Guantanamo since 2003.

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.

This is a satellite image of of Camp 7, a top-secret facility at Guantanamo Bay that houses 14 high-value detainees, including self-professed 9/11 mastermind Khalid Sheikh Mohammed. The location of Camp 7 was confirmed to Truthout by a military intelligence official.

This story was written by investigative reporter Jason Leopold and originally published on Truthout.

Attorneys defending some of the high-value detainees imprisoned at Guantanamo Bay are pushing back against a new policy implemented by Navy Rear Adm. David B. Woods, the commander of the prison facility, which calls for the seizure and review of the prisoners’ legal mail and other materials from the top-secret camp where they are housed.

The policy was apparently enacted in early October, around the same time the Pentagon announced that Abd Al-Rahim Nashiri, the alleged mastermind of the October 2000 USS Cole bombing, would be arraigned on murder and terrorism charges. Nashiri’s arraignment is scheduled for November 9.

On Tuesday, military attorneys representing six high-value detainees also facing military commissions, including the lawyer defending Nashiri, sent a letter to William Lietzau, deputy secretary of defense for detainee affairs, demanding he order Woods to “cease and desist the seizure, opening, translating, reading and reviewing of attorney-client privileged communications.”

The nine military attorneys who signed the letter to Lietzau said they have not received responses to numerous other letters they had sent him over the past year about the seizure of legal mail, which they characterized as “illegal,” and “detention practices” not in compliance with domestic and international laws. The attorneys warned that if these issues are not immediately dealt with they will litigate it “to the fullest extent.”

A September 2008 protective order established the groundrules for attorney-detainee communications at Guantanamo, which included the handling of “legal mail.”

“‘Legal mail’ means letters written between a detainees counsel and the detainee that are related to the counsel’s representation of the detainee, as well as privileged docuemnts and publicly filed legal documents related to that representation,” the protective order states.

A separate March 2011 protective order issued for high-value detainees facing military commissions, such as Nashiri, set the policy for the way “legal mail” would be handled by military personnel stationed at Guantanamo. The protective order notes that “legal mail,” approved as such by military personnel who first review incoming documents from detainees’ attorneys, is placed into a sealed envelope and delivered to a detainee. The envelope containing legal mail must be opened by military personnel in the presence of the detainee.

“Security Search”

Two weeks ago, in response to Truthout’s queries about the matter, Lt. Col. Joseph Todd Breasseale, a Defense Department spokesman, said Woods, who was named Joint Task Force Guantanamo commander in August, “directed that a security search be undertaken of detainee cells and materials in Camp 7,” where the 14 high-value detainees reside.

“This security search is not in response to any particular security threat and does not involve detainees in other [Joint Task Force-Guantanamo] detention facilities,” Breasseale told Truthout October 14.

He would not disclose why the “security search” was initiated.

“We will never discuss security apparatus or security protocols around detainees,” Breasseale said.

The statement Breasseale provided to Truthout is identical–word-for-word–to the one the Department of Justice (DOJ) gave Stephen Truitt, an attorney who represents Yemeni citizen Hani Abdullah, when he inquired as to whether the policy would be extended to his client, who is not a high-value detainee.

Truitt sent an urgent email to DOJ civil division attorneys David Avila and Andrew Warden on October 14, stating that he learned Woods “has embarked upon the wholesale seizure and content examination (not merely for contraband such as paper clips etc.) of legal mail to at least one [high-value detainee] and that this procedure is to be extended to other prisoners in the other facilities.”

Truitt wrote in his email that he objected to the “extension [of] any such procedure” to Abdullah and warned Avila and Warden that if Woods’ “unlawful” “security search” is extended to his client “further steps will become necessary.”

“I ask for your immediate confirmation that this procedure will not be visited on Mr. Abdullah,” Truitt wrote.

Warden responded to Truitt via email on October 17. He said the “security search” was only aimed at the high-value detainees in Camp Seven.

Brent Mickum, an attorney representing Abu Zubaydah, the first high-value detainee captured after 9/11, said he, too, sent an email to the DOJ inquiring about the legal mail policy, but he never received a response.

“We have been notified that the prisoners at Camp Seven are in the process of being subjected to certain search procedures that may be unauthorized and/or improper,” Mickum wrote, also on October 14, in an email he sent to DOJ attorney James Luh. “More specifically, we have been informed that cell searches are being conducted at Camp Seven, and that, as part of that process, a prisoner’s legal mail and legal papers are being removed and reviewed and, if necessary, translated by [Department of Defense] personnel.”

“Furthermore, we are informed that no procedures are in place to prevent the improper transfer of this information,” Mickum added. “Please confirm whether or not any of our client’s written materials have been removed from his cell. If so, please inform us whether those materials have been, or are scheduled to be returned to him. To the extent written legal materials were seized, please identify the materials reviewed, the indentity(ies) of the person(s) who conducted the review, and the alleged reason(s) for the review.”

In an interview, Mickum said the “fact that the government is doing this is nothing new.”

“My British clients [Bisher Al Rawi, Jamil El Banna and Martin Mubanga] had their legal mail seized and reviewed before it was ever provided to them,” Mickum said. “That the government would take legal mail, read it, and not make any effort to protect sensitive information speaks volumes about what the Department of Justice and the Department of Defense think about the legal system. But what really shocks me is that at this late date this issue is still isn’t resolved.”

Two other DOJ attorneys, however, expressed concern about the new guidelines, stating in emails in response to questions by lawyers representing two detainees, that they were “unaware” and “surprised” it had been implemented and promised to “look into it.”

The attorneys, who said they have not received any follow-up correspondence from the DOJ, requested anonymity and asked that Truthout not reprint the contents of the emails they received because they feared doing so, in addition to discussing the issue on-the-record, would strain their already fragile relationships with the DOJ and negatively impact their clients’ cases.

A DOJ spokesman declined to comment for this story.

“Privilege Review Team”

Mark Denbeaux, the director of the Seton Hall Law Center for Policy and Research, who is also a member of Zubaydah’s legal team and represents another high-value detainee, said he does not understand why high-value detainees’ legal mail would be seized since the attorneys representing the prisoners are already under a strict protective order that requires a “privilege review team,” a panel made up of Defense Department attorneys and intellgence officials as well as interpreters/translators, to scrutinize materials lawyers want to present to their clients.

“No document has ever made its way to a detainee from a lawyer without going through the privilege review team to determine if it is safe,” Denbeaux said. “The question is, why now? Has the system that has been in place been abused in some way?”

Denbeaux and Christa Boyd Nafstad wrote about the privilege review team in an article titled “The Attorney-Client Relationship in Guantanamo Bay,” published in 2006 in the Fordham International Law Journal.

“A ‘privilege review team’ will read all mail from the attorney before sending it to the client. The attorney is not allowed to write about anything concerning ‘unnecessary outside information’”; if the correspondence contains anything the privilege team deems unnecessary, the letter will not be forwarded to the client,” Denbeaux and Nafstad wrote. “Not only does this regulation inhibit meaningful dialogue between attorney and client, it also runs afoul of the United Nations Basic Principles on the Role of Lawyers, which states ‘[g]overnments shall recognize and respect that all communications and consultations between lawyers and their clients within their professional relationship are confidential.’”

The privilege team, attorneys say, also suppresses important information hindering their ability to do their jobs. For example, last week, the privilege review team declined to declassify and turn over to Zubaydah’s attorneys a power-of-attorney form he signed that authorized his legal team to file a lawsuit on his behalf against Lithuania for failing to reopen an investigation to determine the role its government played in Zubaydah’s rendition to a CIA black site prison located in the country and the torture he was subjected to there in 2005.

Moreover, Denbeaux said the Department of Defense and DOJ’s statements, which indicated that the “security search” of high-value detainees’ “cells and materials” was not ordered “in response to any particular security threat” concerned him.

“That is exactly what the government didn’t say [in June 2006] when they justified seizing 50,000 pages of documents from detainees, including envelopes clearly marked ‘attorney-client privilege,” Denbeaux said.

The seizure of detainees’ materials back then was a direct response to the three deaths that occurred on the island, which the Defense Department claims were suicides.

Guantanamo officials went to court justifying the unprecedented move, stating they needed to review the documents, including legal mail, to determine if there was a conspiracy that would result in mass suicides at the prison facility.

The documents were eventually returned to the detainees and the government filed a motion in federal court asking a judge to approve the creation of a “privilege team.” The motion was granted in September 2006.

Denbeaux said even if Woods’ policy is determined not to be a violation of the law it does “devastating harm to the attorney-client relationship.”

“The client has no reason to trust the information he is providing to his attorney is not being abused,” Denbeaux said.

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

This report was written by Jason Leopold and originally published at Truthout.

Attorneys for Abu Zubaydah say they have been trying to mount a meaningful defense for the “high-value” detainee, who has been in the custody of the US government since March 2002, and have also sought legal remedies outside of the United States to hold accountable those who were complicit in his rendition and torture.

But the attorneys claim their efforts have been stymied by the Justice Department (DOJ), which refuses to turn over to them critical documents they need to press forward with Zubaydah’s case.

For example, late Thursday, Zubaydah’s legal team filed a lawsuit against Lithuania with the Strasbourg-based European Court of Human Rights (ECHR), the leading human rights tribunal in the world, over the country’s failure to reopen an investigation into its role in Zubaydah’s rendition to a CIA black site prison in Lithuania and the torture he was subjected to there in 2005.

But the DOJ on Wednesday told Zubaydah’s lawyers they would not declassify and turn over to them a power-of-attorney form Zubaydah signed earlier this year authorizing his legal team to file the lawsuit against Lithuania on his behalf.

The DOJ, according to Brent Mickum, one of Zubaydah’s attorneys, refused to consider the document for declassification because the government maintains it has nothing to do with Zubaydah’s habeas corpus case pending before a federal court judge in Washington, DC.

“How the government, with a straight face, could contend that facts relating to Zubaydah’s detention in CIA custody at a CIA black site in Lithuania has no bearing on his defense is inconceivable to me,” Mickum told Truthout. “The government is essentially trying to force us to sit idly by as the years pass and do nothing to further our client’s interest a prepare his defense. But we can’t do that. We are required to zealously pursue his defense by our profession’s Canon of Ethics.”

Alex Abdo, a staff attorney with the American Civil Liberties Union’s (ACLU) National Security Project, said, “it is difficult to imagine what possible basis the government could have for refusing to release a document proving nothing more than the existence of an attorney-client relationship.”

Mickum said the government demanded he justify how the power-of-attorney form would be used in Zubaydah’s habeas case, which he would not do because “it would require us to provide the government with information that is protected under the ‘work product doctrine.’”

“There is nothing that we, as Zubaydah’s counsel, are doing that is not intended to directly support his habeas case,” he said.

Zubaydah and more than a dozen other high-value detainees, who are being held at the Guantanamo Bay prison facility, are subject to a strict protective order that deems all of their communications classified. A government “privilege team” based in Washington, DC, must first review materials, which includes notes, letters and memos, to determine whether it can be cleared for declassification.

According to a confidential letter filed with the lawsuit submitted ECHR Thursday, the DOJ’s refusal to declassify Zubaydah’s power-of-attorney form now requires his lawyers to seek legal remedies against the US government court for interfering with the Lithuania case. In lieu of Zubaydah’s signed power-of-attorney form, according to the letter, his attorneys have asked the human rights court to accept an authorization form signed by Joseph Margulies, one of Zubaydah’s other attorneys, that was submitted in July.

Dean Boyd, a DOJ spokesman, said Thursday, prior to the lawsuit being submitted to ECHR, that “we will not comment on a court document that has not yet been filed and which we have not had an opportunity to review.”

“Victim of Torture”

Zubaydah’s US attorneys have been working with human rights groups Reprieve and the International Centre for the Legal Protection of Human Rights (Interights) on the case.

The lawsuit “seeks a determination by the European Court of Human Rights recognizing [Zubaydah] as a victim of torture, secret detention and enforced disappearance on Lithuanian soil,” a news release distributed by Interights states.

Interights said, “due to a communication ban imposed by the CIA, the U.S. Department of Justice and the Department of Defense that prevents him from publicizing the facts in his case,” Zubaydah cannot “defend himself publicly.”

Lithuanian government officials shut down the investigation in January and said last week they would not reopen their probe, despite the emergence of new evidence obtained by human rights groups in the form of flight logs that showed Zubaydah was flown from Morocco to Lithuania aboard a Boeing 737 in February 2005.

Crofton Black, an investigator with Reprieve, said the lawsuit “is a deeply embarrassing development for the Lithuanian Government.”

“Because [the Lithuania government has] been unwilling or unable to get to the bottom of their part in the murky business of rendition, they are now being dragged before the European Courts,” Black said. “Lithuania’s role in the CIA’s secret prisons programme will continue to be a stain on their international reputation, unless they undertake a proper, thorough inquiry into just what abuses were allowed to happen in their country.”

Zubaydah was captured, along with 51 other alleged terrorists, during an early morning raid of a safehouse in Pakistan on March 28, 2002, in an operation conducted jointly by the CIA, FBI and Pakistani intelligence. The Bush administration said publicly after Zubaydah was apprehended that he was the No. 2 person in al-Qaeda, was involved in every major terrorist operation planned by al-Qaeda and was one of the planners of the 9/11 attacks.

A legal memo prepared by Justice Department attorneys Jay Bybee and John Yoo in August 2002, which authorized the CIA to use brutal torture techniques on Zubaydah, said because the Palestinian was “one of the highest ranking members of the al-Qaeda terrorist organization,”  torturing him was necessary to thwart pending attacks against US interests, which the CIA claimed Zubaydah knew about.

But in a stunning admission last year first reported by Truthout, the DOJ backed away from nearly every major claim the Bush administration made about Zubaydah, including his membership in al-Qaeda and his role in 9/11 and other terrorist attacks, stating in a court filing in response to a discovery motion filed by Zubaydah’s attorneys in his habeas case that their “understanding of [Zubaydah's] role in terrorist activities has … evolved with further investigation.”

Classification Abuses Alleged

Additionally, the government declined to declassify for the purposes of the lawsuit against Lithuania a signed declaration from Zubaydah totaling about 15 pages detailing the torture he was subjected to during his imprisonment at CIA-run prisons his attorneys had hoped to submit along with the power-of-attorney form.

The CIA also refused to process a mandatory declassification review Truthout filed last month of Zubaydah’s poetry, short stories and other writings and about ten drawings he made, while imprisoned at black site prisons, depicting the torture he endured. Susan Viscuso, the CIA’s information and privacy coordinator, told Truthout in two separate letters that the materials, “should they exist,” would be part of the agency’s “operational files,” which means “records and files detailing the actual conduct of [CIA's] intelligence activities.”

CIA operational files are exempt from Freedom of Information Act (FOIA) searches, reviews and “disclosure requirements.”

Two years ago, Mickum filed a motion in federal court in Washington, DC, that accused the government of “improper classification” of documents that included statements Zubaydah made describing “the interrogation techniques inflicted upon him while in CIA custody … other personal knowledge of his experience within the CIA Torture and Rendition Program and … statements made by [Zubaydah's] counsel based upon information that is found within the public domain.”

In March, US District Court Judge Richard Roberts issued a four-page order in response to that motion that said that any statements Zubaydah has made to his attorneys describing the torture he endured must remain classified and cannot be revealed publicly in court filings

Roberts said Zubaydah’s legal team, in seeking to have Zubaydah’s statements related to his treatment declassified, was essentially trying to bring “a FOIA challenge in the midst of a habeas petition.”

“… The government must provide petitioner’s counsel, not the public at large, with classified information unless the government moves for an exception to disclosure,” Roberts wrote.

Abdo, the ACLU staff attorney, said, “unfortunately, this type of suppression is nothing new.”

“For years, lawyers for Guantanamo detainees, even detainees conceded by the government to be innocent, have been prohibited from publicly revealing the gross details of torture and mistreatment documented in government records produced during their clients’ cases,” Abdo said. “The government’s continued suppression of evidence of government abuse is anathema to an informed democracy and only underscores the continuing and urgent need for transparency and meaningful accountability for government torture and cruel treatment.”

New Policy

Mickum said the secrecy that now surrounds Zubaydah’s power-of-attorney form is another bizarre development in Zubaydah’s case.

He said he printed a blank power-of-attorney form off of a web site and, during a recent trip to Guantanamo, took it to Zubaydah for his signature.

But when he attempted to take the document into a meeting with Zubaydah, he was told that the Department of Defense and the DOJ now required him to have all documents cleared by the privilege team in Washington, DC, which could take weeks. Another attorney on Zubaydah’s legal team had to return to Guantanamo to have Zubaydah sign the document, after the blank document was finally cleared.

Once Zubaydah signed the form, the document was immediately classified top secret and, according to Mickum, put into an envelope that was “double-sealed” and taken to a secure facility in Washington, DC, by a government official who transports such documents in a briefcase handcuffed to his wrist and then places them into a safe. Mickum, who has top-secret security clearance, then had to go to the secure facility and submit the document to the privilege team again for their review and request that it be declassified.

Mickum said the government’s procedures, which were implemented by the Obama administration within the past year, make it difficult for him to do his job.

“Anything we take into a meeting with our client in Guantanamo has to first be cleared by the privilege team,” he said. “It could be something as simple as a newspaper article that cites him by name.”

Mickum said he believes the policy is less about protecting classified information and more about shutting down any public access to the facts in the case.

“There’s absolutely no reason or justification for it,” he said. “But this process has never been about fairness or justice.”

The DOJ’s hard-line stance pertaining to Zubaydah’s authorization form in the Lithuania case is at odds with the position the government took when Zubaydah’s attorneys sought declassification of an identical form used in a similar lawsuit filed against Poland, which agreed in January to grant Zubaydah “victim” status.” Zubaydah was transferred from a CIA black site in Thailand, where he had his eye surgically removed by US medical personnel and was first subjected to brutal torture techniques approved by Bush administration lawyers, to a secret CIA prison in Poland in December 2002 and held there for about nine to ten months.

Mickum said he’s not surprised by the government’s inconsistent position on the power-of-attorney form.

“The government cleared it for release in the Poland case,” Mickum said. “Now, with the Lithuania case, they realize the purpose of it and that we will use information we obtain to defend our client in his habeas case; that is why they’re saying ‘no.’”

Scott Beason

Republican legislators acted with racist and political motives when they testified for the prosecution in the federal Alabama bingo case, a U.S. District judge says in a new ruling.

Sen. Scott Beason (R-Gardendale) and Rep. Benjamin Lewis (R-Dothan) drew harsh words from Judge Myron Thompson. The public likely will focus on Beason’s role in the story because he has received national attention for sponsoring Alabama’s strict and controversial immigration law. But Lewis, now a state district judge in Houston County, is a close ally to former Governor Bob Riley and was appointed to a judgeship by Riley. Democrats have pointed to that appointment as a possible quid pro quo in exchange for Lewis’ no vote on bingo legislation.

Considering Lewis’ close ties to Riley, and Riley’s close ties to current House Speaker Mike Hubbard, Judge Thompson’s ruling could be seen as a full-blown condemnation of the Alabama GOP. Reports al.com:

U.S. District Judge Myron Thompson in an order today lambasted two key prosecution witnesses in the State House vote-buying case as being motivated by political ambition and racial prejudice.

Thompson said Republicans Sen. Scott Beason of Gardendale and former Rep. Benjamin Lewis of Dothan had ulterior motives when they assisted investigators in the case. Beason and Lewis were key prosecution witnesses in the case, in which VictoryLand owner Milton McGregor and others were charged with offering and taking bribes to try to get a gambling bill approved in the Alabama Legislature. The two Republicans said they approached FBI agents after they felt gambling interests made improper offers to try to secure their votes on the bill.

Ironically, Thompson ruled for the prosecution in the order–while thrashing the prosecution’s two key witnesses. At the crux of his order, Thompson found that statements of alleged co-conspirators could be admitted at trial. (See the full order below.)

The public, however, is likely to remember Thompson’s words about GOP legislators:

“The evidence introduced at trial contradicts the self-serving portrait of Beason and Lewis as untouchable opponents of corruption. In reality, Beason and Lewis had ulterior motives rooted in naked political ambition and pure racial bias,” Thompson wrote.

“The court finds that Beason and Lewis lack credibility for two reasons. First, their motive for cooperating with F.B.I. investigators was not to clean up corruption but to increase Republican political fortunes by reducing African-American voter turnout. Second, they lack credibility because the record establishes their purposeful, racist intent,” Thompson wrote.

Those words pretty much shoot holes through the GOP’s contention that it is driven by a desire to bring “honest government” to Alabama. A federal judge obviously is not buying it. From al.com:

Beason wore a wire for the FBI, and the recordings picked up a conversation among Republicans talking about the effect a gambling referendum would have on voter turn-out during an election.

They talked about how “every black, every illiterate,” would be taken to the polls on “HUD-financed buses.”

In another conversation, Beason used the word “aborigines” to refer to people at Greenetrack, a casino in predominately black Greene County.

Thompson said such statements “demonstrate a deep-seated racial animus and a desire to suppress black votes.”

Racist rhetoric, political hi jinks, voter suppression? Yep, that’s the kind of “honest government” Alabamians can look forward to from the GOP.
Bingo Order–GOP RacistsRoger Shuler, a regular contributor to The Public Record, resides in Birmingham, Alabama. A 1978 graduate of the University of Missouri, Shuler worked 11 years as a reporter and editor for the Birmingham Post-Herald before working 19 years in several editorial positions at the University of Alabama at Birmingham (UAB). He blogs at Legal Schnauzer.

Guantanamo detainee Fayiz al-Kandari

Recently, the Kuwaiti Prime Minister, Sheikh Nasser Al-Mohammad al-Ahmad Al-Sabah, traveled to the United States and, in a meeting with Vice President Biden, once again asserted Kuwait’s interest in seeing its two remaining citizens (Fayiz Al-Kandari and Fawzi Al-Odah) returned from America’s island prison in Guantanamo Bay (GTMO).

While I applaud the Prime Minister addressing this issue, virtually identical appeals from Kuwait have fallen upon deaf ears for more than decade.  And now, even more menacing obstacles to justice loom on the horizon in the form of indefinite detention and the 2012 National Defense Authorization Act.  As a result, time is a luxury Fayiz and Fawzi can no longer afford . . . and patient diplomacy is no longer a viable option.

Of the 775 prisoners originally confined under inhumane conditions at GTMO, approximately 600 have been released without being charged with any crime or ever setting foot in a courtroom.  Of the remaining 171, another 90 have been cleared for release without trial.  This leaves approximately 81 prisoners whose fate remains undecided.  Of those, the United States claims it will provide trials to approximately 30 individuals (less than 4% of those it saw fit to confine).  The rest will continue to be imprisoned at GTMO, without trial, under President Obama’s officially-authorized policy of “indefinite detention.”   Unfortunately, despite the Prime Minsiter’s most recent appeal, Fayiz and Fawzi will likely fall into this final group and be detained without trial for the rest of their lives.

Moreover, the United States Congress is currently on the eve of passing the 2012 National Defense Authorization Act (NDAA), which, in its present form, recognizes the war on terror as never ending and codifies President Obama’s indefinite detention scheme.  Perhaps more importantly, however, the proposed NDAA would prohibit the United States from returning any GTMO detainee (regardless of guilt or innocence) to any country that has previously had a former GTMO detainee reengage in “terrorist” activity.

Consequently, even if Fayiz and Fawzi conclusively prove their innocence, they will nonetheless remain imprisoned at GTMO because a single Kuwaiti, released without trial by President Bush in 2008, allegedly became a suicide bomber in Iraq.  Thus, if the proposed NDAA passes, Fayiz and Fawzi will serve a life sentence for an offense committed by another man.

Confinement without trial . . . and punishment for another man’s offense.  It is difficult to imagine a scenario less consistent with American ideals.

As a result, I implore the Kuwaiti government not to treat GTMO as just another issue to be resolved through patient diplomacy.  The United States detention policy has become so irrational that polite appeals cannot possibly succeed.  Rather, Kuwait must view the United States as one might view a family member addicted to a powerful substance (in this case fear, paranoia, and political pandering).  Only immediate and consequential intervention can possibly resolve the problem.  As America’s strongest ally in the Middle East, Kuwait is the only partner capable of such intervention.

The views expressed in this article do not represent the views of the Department of Defense or the United States government. Lt. Col. Wingard is a military lawyer who represents Fayiz al-Kandari and has served for 27 years in the military. When not on active duty, he is a public defender in the city of Pittsburgh.

Lt. Col. Barry Wingard represents Fayiz al-Kandari, a Kuwaiti who has spent more than eight years in U.S. custody at Guantanamo Bay without trial.

The military commissions, which were last used on Nazi saboteurs in World War II, were brought back from the dead by Vice President Dick Cheney almost ten years ago — in an alarming military order dated November 13, 2001 — as a means of swiftly trying and executing terror suspects seized in the “war on terror” without the impediment of due process or a ban on evidence derived through the use of torture.

Ruled illegal by the Supreme Court in June 2006, the commissions were then resuscitated by Congress, and although Barack Obama froze them temporarily when he took office, he soon thawed them out again, even though the wisest of his advisors recommended him not to, as the primary charges in the commissions — conspiracy and providing material support to terrorism, for example — were appropriate crimes to be tried in federal courts, but had only been invented as war crimes by Congress.

Reviving the commissions left President Obama with a two-tier system of justice for those held at Guantánamo, with both federal court trials and military commissions on the table, and it led him into unseen difficulties, when, after he announced in November 2009 that Khalid Sheikh Mohammed and four other “high-value detainees” in Guantánamo would face a federal court trial in New York for their involvement in the 9/11 attacks, those who opposed his plan struck back.

Because of President Obama’s refusal to consign the commissions to a legal grave, his critics could point to them as a viable alternative to a federal court trial, especially as the administration, when announcing the 9/11 trial, had also announced that five other Guantánamo prisoners would be tried by military commission.

As a result, Obama’s critics in Congress ultimately succeeded in passing legislation preventing any Guantánamo prisoners from being brought to the US mainland for any reason (even to to face a federal court trial), and have now embarked on their most audacious and inappropriate measure yet — threatening to pass legislation making it mandatory for any foreign terror suspect to be held in military custody rather than being tried in federal court for the crime of terrorism.

Ten years after 9 /11, it is truly depressing that the misguided “war on terror” not only lives on, but may get a new lease of life, and at Guantánamo, where part of this struggle to keep Dick Cheney’s malevolent dreams alive is particularly focused, the authorities are gearing up for new activity.

Last week, in an attempt to market what the Miami Herald described as “a new era of transparency” at Guantánamo, Army Brig. Gen. Mark Martins, the new Chief Prosecutor of the military commissions, told the Weekly Standard that the commissions will “feature new measures to ensure transparency, including a venue enabling victims and media to observe proceedings near-real-time in the continental United States.” The Herald added that the transmissions “won’t be live because the feeds will be broadcast on a ’40-second delay to ensure safeguarding of national security information.’”

In the Miami Herald article, Carol Rosenberg, who has been following the military commissions since they first began, called the proposed new system “vastly different” from what has been in place to date, whereby “reporters and other spectators were required to fly to Guantánamo on specially arranged Pentagon flights,” and then “faced strict limitations on where they could go and what they could report,” which “helped cut the number of news organizations covering events there.”

The changes, if implemented, will certainly increase transparency, and that is to be commended, but huge and, I believe, insurmountable problems remain for the commissions.

Chief amongst these is how transparency can be balanced with what remains an obsessive need for secrecy on the part of the government. Having decided not to even investigate the Bush administration’s official torture program (despite the requirement to do so under the terms of the UN Convention Against Torture and America’s own domestic torture statute), the Obama administration will be obliged to continue making sure that, when those to be tried were tortured, discussion of the time they spent in secret CIA prisons, where the use of torture was widespread, is severely limited.

As Carol Rosenberg noted, “The CIA still forbids the public to hear what they did and where they did it, even when captives have described their treatment at pre-trial proceedings,” and these requirements also protect “the identities of CIA agents and contractors who carried out interrogations.”

This is of relevance not just in the case of Khalid Sheikh Mohammed and his co-accused, but, more pressingly, in the case of Abd al-Rahim al-Nashiri, the alleged mastermind of the attack on the USS Cole in 2000, who had his case officially referred for trial by military commission by the commissions’ Convening Authority, Retired Adm. Bruce MacDonald, on Wednesday, in what were the first capital charges put forward for trial in the commissions.

The problem, for the government, is that al-Nashiri was, notoriously, one of three “high-value detainees” waterboarded by the CIA. In a report on the referral to trial in the Washington Post, it was noted, coyly, that “waterboarding was sanctioned by Justice Department lawyers,” when what should have been noted was that Justice Department lawyers — John Yoo and Jay S. Bybee — purported to approve its use, even though there are no grounds whatsoever for lawyers to attempt to justify the use of torture.

There are further complications. As the CIA Inspector General concluded in a report on detainee treatment in 2004 (PDF), al-Nashiri was also threatened with mock executions when CIA operatives held a power drill and a gun to his head while he was hooded and naked in a secret prison in Thailand — actions that exceeded the guidelines laid down by Yoo and Bybee — and al-Nashiri’s lawyers argued in submissions to the Convening Authority that no case should be brought against their client because of his torture, because of the delay in his case, and also because of the destruction of evidence. Videotapes of al-Nashiri’s waterboarding were among the tapes destroyed by the CIA, in spite of a court order demanding that they be preserved, and his lawyers argued that the destruction of the tapes deprives the defense team of important and potentially exculpatory evidence.

In addition, although the government “cannot use any statements obtained under torture,” and “prosecutors are unlikely to rely on any statements Nashiri made while in CIA custody,” in the Post‘s words, one of his lawyers, Navy Lt. Cmdr. Stephen Reyes, stated that he intended to summon the CIA operatives involved in his client’s interrogation to the trial.

In the submission, his lawyers stated, “The United States should not be permitted to kill a man it has brutally tortured and subjected to cruel, inhuman and degrading treatment.”

Further afield, the European Parliament submitted a declaration in June stating that al-Nashiri should not be subject to the death penalty because of his treatment by the CIA, and human rights groups have also spoken out against the plans. In addition, al-Nashiri’s treatment in a secret CIA prison in Poland, where he was sent after his ordeal in Thailand in November and early December 2002, is regarded as so severe that, although there has been no official acknowledgement that a secret prison existed in Poland (either by the US or the Polish governments), the Polish prosecutor investigating his case was so alarmed by documents, which, evidently, he had access to, that he officially designated him — and Abu Zubaydah, another tortured “high-value detainee” — as a “victim.”

One last problem with the commissions was inadvertently revealed in the Weekly Standard article, when the Pentagon’s General Counsel Jeh Johnson said that Brig. Gen. Martins was “a recognized superstar” who, as the Miami Herald put it, “would focus not on getting the most convictions but on making the war court credible and sustainable.” This is the same Jeh Johnson who, in testimony before the Senate Armed Services Committee in July 2009, when the revival of the commissions was being discussed, urged the committee to drop the charge of material support, because the administration believed that it would be overturned on appeal, as it was “not a traditional violation of the law of war” — and, as mentioned above, was invented by Congress.

Al-Nashiri does not face a material support charge, but the charges he does face include conspiracy and murder in violation of the laws of war, and the latter charge also has a non-existent history as a war crime, having also been dreamt up by Congress when the military commissions were first revived after the Supreme Court ruled them illegal in 2006.

As al-Nashiri’s case finally proceeds to trial, all but the most blinkered enthusiasts for the commissions should be deeply troubled that, despite amendments, a system dedicated to evading all mention of torture in the case of a tortured man is going ahead with barely a murmur of dissent, even though this deeply flawed system contains invented war crimes, intended to turn a crime (terrorism) or engagement in warfare into violations of the laws of war, when they are no such thing.

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.

The courts’ failure has come about largely because a number of judges in the D.C. Circuit Court, where appeals against the habeas rungs are filed, have revealed themselves to be at least as right-wing as the architects of the “War on Terror” in the Bush administration. Led by Judge A. Raymond Randolph, whose previous claim to fame on national security issues was that he supported every piece of Guantánamo-related legislation that was subsequently overturned by the Supreme Court, the Circuit Court has, in the last year, succeeded in gutting habeas corpus of all meaning, when its relief is sought by any of the 171 men still held at Guantánamo.

Throughout this year, I have followed, with despair, the Circuit Court’s rulings, which are distressing on two fronts: firstly, because judges have whittled away at the lower courts’ demands that the government establish its case “by a preponderance of the evidence,” which is a very low standard in the first place; and secondly, because the Circuit Court has reinforced the misconception at the heart of the “War on Terror,” almost delighting, it seems, in failing to acknowledge that soldiers are different from terrorists.

In fact, despite the Supreme Court’s attempt to grant rights to the prisoners, both soldiers and terrorists are still, essentially, held at Guantánamo as a category of human being with almost no rights at all — what George W. Bush notoriously referred to as “unlawful enemy combatants.”

Last month, just after the Boumediene anniversary, on June 23, Judge Ricardo Urbina delivered the 60th Guantánamo habeas ruling, turning down the habeas petition of Khairullah Khairkhwa, an Afghan prisoner (PDF). This was unsurprising, as Khairkhwa was the governor of the western province of Herat under the Taliban, and had also served as the Taliban’s Minister of the Interior. Crucially, Khairkhwa’s defense turned on his claim that he did not have a military role, but Judge Urbina agreed with the Justice Department that there was evidence indicating that “he served as a member of a Taliban envoy that met clandestinely with senior Iranian officials to discuss Iran’s offer to provide the Taliban with weapons and other military support in anticipation of imminent hostilities with US coalition forces.”

This may well be the case, although it does not detract from the ongoing, and largely unchallenged absurdity of holding prisoners at Guantánamo who were involved in military activity, rather than those who were involved with acts of international terrorism. Unless Khairkhwa was involved in the planning and execution of the 9/11 attacks, he should, I contend, have been held as a prisoner of war, and not as an “enemy combatant,” and, very possibly, tried in Afghanistan for the war crimes of which he has been accused. These took place in 1998, when he was in charge as the Taliban took the northern Afghan city of Mazar-e-Sharif, and proceeded to massacre thousands of its inhabitants, the Hazara and the Uzbeks, who, along with Tajiks and Pashtuns, make up the four main ethnic groups in Afghanistan.

It is to no one’s credit that, nearly ten years after the 9/11 attacks, the deliberate confusion at the heart of the “War on Terror” — designed by senior Bush administration officials to allow them to set up an illegal interrogation camp at Guantánamo, and to coercively interrogate those it held, and even to torture them — still exists, imprisoning soldiers, and even military commanders like Khairkhwa, in an experimental prison associated with terrorism, possibly for the rest of their lives.

Last Friday, July 22, the Circuit Court reinforced its position, denying the appeal of Muaz al-Alawi (known to the authorities as Moath al-Alwi), who lost his habeas petition 18 months ago, in January 2009. Al-Alawi was one of the first prisoners to lose his habeas petition, and his case was emblematic of the distortions required to equate soldiers with terrorists.

At the time Judge Richard Leon turned down his habeas petition, the Court first had to establish that, in order to be detained, prisoners were required to be “part of or supporting Taliban or al-Qaeda forces, or associated forces that are engaged in hostilities against the US or its coalition partners,” which included “any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.” As I explained at the time:

By Leon’s own account of the evidence, al-Alawi was in Afghanistan before the 9/11 attacks, and was fighting with the Taliban against the Northern Alliance. To counter this, he endorsed the government’s additional claim that, “rather than leave his Taliban unit in the aftermath of September 11, 2001,” al-Alawi “stayed with it until after the United States initiated Operation Enduring Freedom on October 7, 2001; fleeing to Khowst and then to Pakistan only after his unit was subjected to two-to-three US bombing runs.”

In other words, Judge Leon ruled that Muaz al-Alawi can be held indefinitely without charge or trial because, despite traveling to Afghanistan to fight other Muslims before September 11, 2001, “contend[ing] that he had no association with al-Qaeda,” and stating that “his support for and association with the Taliban was minimal and not directed at US or coalition forces,” he was still in Afghanistan when that conflict morphed into a different war following the US-led invasion in October 2001. As Leon admitted in his ruling, “Although there is no evidence of petitioner actually using arms against US or coalition forces, the Government does not need to prove such facts in order for petitioner to be classified as an enemy combatant under the definition adopted by the Court.”

Given the confused definition of who can legitimately be detained at Guantánamo, and the impact, in the last year, of the Circuit Court’s repeated assaults on the lower courts’ rulings, it was obvious that al-Alawi’s appeal would fail (PDF), but that is no cause for celebration.

As with the case of Khairullah Khairkhwa, the wrong questions are still being asked. Rather than asking whether these men can legitimately be held, what those who are disturbed by the ongoing existence of Guantánamo need to be asking instead is why the courts are justifying the ongoing — and possibly indefinite — detention of the Guantánamo prisoners, when that is inappropriate.

The majority of those still held were soldiers, who should be able to argue now that the conflict in which they were seized was finite, and cannot be an endless “War on Terror,” and the rest, accused of involvement with terrorism, should be tried for their alleged involvement in criminal activities.

Originally published on 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.

David Hicks, author of "Guantanamo: My Journey." (Image: Random House Australia)

This story was written by Jason Leopold and originally published on Truthout.

Last week, the Australian government announced that it would initiate legal proceedings to try and seize royalty payments David Hicks has received following the publication of his memoir, “Guantanamo: My Journey,” about the five years he spent at the prison facility, charging that he has violated the country’s laws by profiting from a crime.

While Hicks’ supporters have deplored the decision by Australia’s Commonwealth Director of Public Prosecutions, the court proceedings scheduled to begin next month could end up being a blessing for the former Guantanamo detainee and his defense team in that it may afford them an opportunity to show how the Bush administration and the government of former Prime Minister John Howard politicized his case, a fact much of the Australian media continues to ignore.

Hicks, 35, who gave his first interview to Truthout in February, pleaded guilty in 2007 to providing material support for terrorism. Hicks was the first detainee to be convicted before a military commission following the passage of the Military Commissions Act by Congress the previous year. The legislation was crafted in response to a Supreme Court decision that struck down the original military tribunal system set up by George W. Bush after 9/11, which the High Court said was illegal under the Geneva Conventions and US law.

Col. Morris Davis, the former chief prosecutor of military commissions at Guantanamo, recalled during a recent interview at his office in Washington, DC, how he was pressured into indicting Hicks for war crimes not long after the Military Commissions Act was signed into law by Bush in October 2006. (Truthout will publish a lengthy story based on our interview with Davis, a vocal critic of the Obama administration’s handling of Bush-era torture, in the weeks ahead.)

Davis said he believed that Hicks, who attended training camps in Afghanistan and was sold to US forces by the Northern Alliance for a $1,500 bounty in November 2001, should not have been prosecuted for war crimes. He described the former horse trainer as a “knucklehead … a little guy with not a lot of education who wanted to be a big shot and went off on this adventure to Jihad.”

“After years at Guantanamo, there was no possibility David Hicks would ever repeat that experience,” Davis said.

When he was selected as chief prosecutor in September 2005, Davis said he made it clear to his superiors at the Pentagon that “the one case I did not want to start with was David Hicks.”

“The first case is the one that will get lots of attention,” Davis said. “Unfortunately, Hicks’ case was already in the pipeline. It was a terrible case. We told the world these guys are the ‘worst of the worst.’ David Hicks was a knucklehead. He was just a foot solider, not a war criminal. But when Congress passed the Military Commissions Act they authorized prosecuting material support, which is what Hicks was charged with, as a war crime. You could prosecute everyone at Guantanamo under that theory.”

Despite Davis’ concerns, the Bush administration was determined to charge Hicks, even if the evidence against him was thin, to help out an ally in the war on terror, US government documents obtained by Truthout show.

Davis also believes that’s what happened. He said he arrived at that decision not long after he received an urgent phone call in January 2007 from Pentagon General Counsel William “Jim” Haynes who asked him, “How quickly can you charge David Hicks?”

Davis said that was the first and only time Haynes had ever called him about a specific case and he found it to be “odd.” The phone call was made one day after US officials met with the ambassador to Australia, where Hicks’ case and its impact on Howard’s re-election campaign was discussed, according to a secret State Department document obtained by Truthout.

Davis informed Haynes, who Bush had twice nominated to serve on the Fourth Circuit Court of Appeals, that he could not initiate charges against Hicks “even if he wanted to” because the “Manual for Military Commissions” had not been prepared yet by Secretary of Defense Robert Gates and a “convening authority” who is supposed to oversee the process had not been appointed.

“The manual implements the law, in this case the Military Commissions Act of 2006,” Davis said. “It fills in the details the statute doesn’t. It fills in the elements of crimes, lays out the elements of crimes. When Haynes called me I said I couldn’t charge Hicks because I did not know what the elements of the offense are. I said, ‘wait for the manual to be written.’”

Haynes, who did not return emails or phone calls for comment, told Davis the manual was being “worked on” and the Pentagon was reviewing candidates to serve as convening authority. Haynes still wanted to know how quickly Hicks could be charged with war crimes after the military commission’s manual was signed by Gates.

“I told Haynes two weeks,” Davis said. “He said ‘two weeks! Two weeks is too long.’ Haynes then told me to ‘be ready’ and asked if I could charge other [Guantanamo detainees] in addition to Hicks. He didn’t say why.”

Davis said that while he was not privy to the political discussions taking place behind the scenes with regard to Hicks and the military commissions in general he suspects the reason Haynes asked him to also charge other detainees was not to leave anyone with the impression that the administration was “singularly focused” on the Australian detainee.

“They didn’t want [Hicks' case] to stick out like a sore thumb and they wanted to bury it with others,” Davis said. Legal Adviser Brig. Gen. Thomas Hemingway, Office of Military Commissions, “said [Prime Minister] Howard was getting beat about the head and shoulders about the Hicks case.”

At a press briefing on January 18, 2007, Dan Dell’Orto, the Pentagon’s principal Deputy general counsel and General Hemingway announced that a report was being submitted to Congress by Gates “that contains the military commission procedures” and that a longtime confidante of Vice President Dick Cheney, Judge Susan Crawford, former chief judge of the United States Court of Appeals of the Armed Forces, was selected to be the convening authority.

On February 24, 2007, Cheney met with Howard in Sydney and told the vice president, “there must be a trial ‘with no further delay’ for David Hicks who was beginning his sixth year at the U.S. naval prison at Guantanamo Bay,” according to the book “Angler,” by Washington Post reporter Barton Gellman.

Hicks’ was becoming a liability for Howard, who was under pressure by the public and some lawmakers to return Hicks to Australia. Howard told Cheney that Hicks had to be charged with something because there weren’t any laws in Australia for which he could be prosecuted if the US government simply repatriated him.

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According to another secret document obtained by Truthout, after Cheney returned to the US from Sydney on February 25, 2007, he tasked his legal adviser, David Addington, with working with Haynes at the Pentagon and Crawford, who had just been appointed convening authority, to quickly hammer out a deal for Hicks without Davis’ knowledge.

Less than a week after Cheney returned from Sydney, Davis’ office indicted Hicks. He was charged with providing material support for terrorism and attempted murder. Hicks was charged along with Salim Hamdan, a Yemeni detainee who was Osama bin Laden’s chauffeur and bodyguard and whose case, Hamdan v. Rumsfeld, resulted in the June 2006 landmark Supreme Court decision striking down the military tribunal system Bush set up after 9/11. A third detainee was also charged alongside Hicks: Canadian Omar Khadr, who was a teenager when he was captured in Afghanistan and charged with killing a US medic after he tossed a grenade at him.

During a trip to Guantanamo in early March 2007 for Hicks’ arraignment, Davis said he found out the Defense Department had entered into a secret plea deal with Hicks and his defense team that was approved by Crawford.

“I had very few conversations with Susan Crawford,” Davis said. “I wasn’t a party to the plea deal. When I spoke out about it [Crawford] said I was undermining her role and she can’t have the chief prosecutor questioning her judgment.”

The deal, referred to as Alford plea, called for Hicks to sign an agreement accepting the single charge of providing material support, which was not deemed a war crime prior to the passage of the Military Commissions Act of 2006. In an Alford plea, the accused does not admit to the act for which he is charged, but admits that the prosecution could likely prove it. The government dropped the attempted murder charge against Hicks. Under the terms of the deal, Hicks would serve nine months in prison in Australia and would be prohibited from speaking to the media for a year.

Davis was outraged. He said his conversations revolving around Hicks’ punishment and continued incarceration “were measured in years not months.”

In other words, Hicks could still be in Guantanamo today if the Bush administration declined to help Howard as he campaigned for another term in office. Still, as Hicks told Truthout in a previous interview, he believed he had no choice. Accepting the guilty plea was his only way out of Guantanamo.

Davis said he strongly believes Haynes and Addington “worked closely” on the Hicks case and that there is “no doubt in my mind this was an accommodation to help John Howard by making the David Hicks case go away.”

“I am sure this wasn’t Jim Haynes waking up one morning and saying ‘how can I help David Hicks,’” Davis said. “Reasonable people could look at this and see this was a favor for an ally. I don’t think the facts are in dispute: to make this case go away it had to get done quickly. If there was an arraignment, then a trial would have likely been set for the fall [of 2007], about two months before Howard would have faced the voters.”

Davis said the political interference in other Guantanamo detainee cases continued after Hicks’ guilty plea. He resigned as chief prosecutor in October 2007 after he was told he would have to report directly to Haynes. He is now executive director and counsel for the Crimes of War Education Project.

Hicks’ Letter

Hicks, meanwhile, has long maintained that he signed the plea deal because it was his only way out of Guantanamo.

In fact, in April 2004, Hicks wrote a letter to his father, Terry, saying that US government officials were pressuring him into pleading guilty to a wide range of war crimes charges and he warned that “if I make a deal it will be against my will” because “I just couldn’t handle it any longer.”

“I’m disappointed in our government. I’m an Australian citizen,” Hicks wrote. “If I’ve committed a crime I can be man enough to accept the consequences but I shouldn’t have to admit to things I haven’t done or listen to people falsely accuse me. We can’t let them get away with it.”

Hicks said he feared that if he didn’t comply and accept the guilty plea he would be sent to “camp 5,” a “very bad place with complete isolation.”

“They know that this is my worst nightmare,” Hicks wrote about the transfer threat, according to the letter, which Truthout obtained from a former guard who was assigned to Hicks’ block at the prison facility. “If I end up in there I will probably lose my sanity or crack. That’s what they want … Being in my current situation the deal is tempting but only in the last week I’ve decided I’m going to call their bluff and say that I’m gonna fight them. Only know [sic] do I feel like being strong and standing up for myself … I’m sick of writing you letters saying how good it is here. I’ve always done that because I’m afraid of what the authority’s [sic] may do to me. If I told you the reality they wouldn’t give you the information. I want to be able to make as much noise as possible. To let people know of what’s really happening here.”

Hicks’ letter, which the former Guantanamo guard was supposed to mail to Hicks’ father but never did, also suggests Hicks was tortured psychologically and physically, despite the fact that he was forced to sign a document as part of his plea deal stating he was never mistreated while in custody of the United States.

“Before I start I want you to know that the negative things I am going to say has nothing to do with the MP’s that are watching me,” Hicks wrote. “Some of them are marvelous people who have taken risks to help improve my day to day living. It’s because of such people that I have kept my sanity and still have some strength left. In the early days before I made it to Cuba I received some harsh treatment in transportation including mild beatings (about 4). One lasted for 10 hours. I have always cooperated with interrogators. For two years they had control of my life in the camps. If you talk and just agree with what their saying they give you real food, books and other special privileges. If not they can make your life hell. I’m angry these days at myself for being so weak during these last two years. But I’ve always been so desperate to get out and to try to live the best I can while I’m here …”

George Williams, one of Australia’s top constitutional lawyers, said what Hicks wrote about in his letter as well as details Davis revealed about what took place behind the scenes in the lead up to Hicks’ guilty plea, could open up a “can of worms” for the Australian government and lead to questions about “what happened [to Hicks] at Guantanamo Bay and whether that ought to be recognised and given legal weight by other democracies.”

For Hicks, perhaps such a public airing would provide him with a sense of justice.