Jamil, of Annandale, Va., was sentenced by U.S. District Court Judge Claude M. Hilton in the Eastern District of Virginia. He pleaded guilty on Aug. 11, 2009, to a one-count information charging him with conspiracy to steal government property.

In his guilty plea, Jamil admitted that in March 2007, he and two of his co-conspirators arranged for the creation of a false memorandum for record (MFR) authorizing individuals, purportedly on behalf of a company serving as a contractor to the U.S. government, to draw fuel from the Victory Bulk Fuel Point (VBFP), Camp Liberty, Iraq, which was owned and operated by the United States. The VBFP supplies aviation and diesel fuel to both military units and U.S. government contractors operating in and around the Victory Base Complex. Jamil admitted that he and his co-conspirators used this false MFR and others to steal large quantities of fuel from the U.S. Army for subsequent sale on the black market. Jamil admitted that he escorted the trucks to retrieve fuel from the VBFP using a false MFR on approximately 10 to 15 occasions. As a result of the scheme, Jamil received between $75,000 and $87,500 in personal profits.

In related cases, Robert Jeffery was convicted on Aug. 11, 2009, after a two-day jury trial of one count of conspiracy and one count of theft of government property for his role in the fuel theft. Evidence at trial established that Jeffery served as an escort for the fuel trucks and illegally retrieved hundreds of thousands of gallons of fuel from the VBFP. On Dec. 11, 2009, Jeffery was sentenced to four years in prison.

Robert Young pleaded guilty on July 24, 2009, to participating in the same scheme. In his plea, Young admitted that he and his co-conspirators employed several individuals to serve as drivers and escorts of the trucks containing the stolen fuel. Young admitted that he received approximately $1 million in personal profits from the scheme. On Nov. 6, 2009, Young was sentenced to 97 months in prison.

Lee William Dubois pleaded guilty on Oct. 7, 2008, to participating in the same scheme. In his plea, Dubois admitted that he obtained government-issued common access cards for the drivers and escorts of the trucks and also presented false documents to the VBFP authorizing his co-conspirators to draw fuel. Dubois admitted that he received at least $450,000 in personal profits from the scheme. On Aug. 25, 2009, Dubois was sentenced to three years in prison.

The case was prosecuted by Special Assistant U.S. Attorney Steve Linick, Deputy Chief of the Criminal Division’s Fraud Section, and Fraud Section Trial Attorneys Andrew Gentin and Brigham Cannon. The investigation of this case was conducted by the U.S. Army Criminal Investigation Command, the Defense Criminal Investigative Service, the FBI, and members of the National Procurement Fraud Task Force and the International Contract Corruption Task Force (ICCTF).

The National Procurement Fraud Task Force, created in October 2006 by the Department of Justice, was designed to promote the early detection, identification, prevention and prosecution of procurement fraud associated with the increase in government contracting activity for national security and other government programs. The ICCTF is a joint law enforcement agency task force that seeks to detect, investigate and dismantle corruption and contract fraud resulting from U.S. Overseas Contingency Operations, including in Afghanistan, Iraq and Kuwait.

Roughly 150 suicide cases were settled for an average of about $2 million, and about 300 cases involving suicide attempts were settled for an average of $300,000, according to a December 14, 2009 report by Bloomberg News. Glaxo paid an average of about $50,000 each to resolve about 3,200 cases linking Paxil to addiction problems. The drug giant has also paid about $400 million to end antitrust, fraud and design claims, Bloomberg reports.

All total, Glaxo has paid out close to $1 billion to resolve Paxil lawsuits since the drug came on the market in1992. The company’s provision for all legal matters and other non-tax disputes as of the end of 2008 was listed as $3.09 billion in its annual report.

The first birth defect trial, in over 600 cases filed, resulted in a verdict for the plaintiffs on October 13, 2009, and an award of  of $2.5 million in compensatory damages for the the family of Lyam Kilker, who was born with three cardiac birth defects after his mother took Paxil while pregnant.

In the Kilker trial, Glaxo’s lead attorney was King & Spalding partner, Chilton Varner, and Sean Tracey, from Houston, led the family’s legal team.

Andy Vickery, of the Houston firm of Vickery, Waldner and Mallia, is the lead attorney in several Paxil birth defect cases. The first case set for trial is unique in that it involves, Delaney Novak, an infant born with heart defects on April 4, 2002, to Laura and Derek Novak, after Laura was prescribed Paxil off label for migraine headaches.

The Novak case is also unique among the Paxil birth defect cases because Delaney’s parents had their insurance with United Healthcare, and Laura was part of the study that Glaxo contracted for, which resulted in the initial warning letter about birth defects in September 2005.

According to Vickery, Glaxo conducted a study on Wellbutrin (bupropion), another antidepressant, after discovering a possible link to birth defects. “The review found no problems with Wellbutrin, but discovered that a significant number of mothers who had been prescribed Paxil (nearly twice as many as those who had not taken the drug) had children born with heart defects,” he says.

Doctors Ra-id Abdulla, David Healy, Shira Kramer and Suzanne Parisian testified as the experts for the plaintiffs in the first trial. All told the jury they believed Paxil caused Lyam’s heart defects. Doctors Abdulla, Healy and Kramer are also expert witnesses in the Novak case.

Ingenix Study in First Trial

The Ingenix study, with lead researcher, J Alexander Cole, was conducted using data from the Ingenix Research Data Mart, containing insurance information from UnitedHealthcare. The study was not supposed to look at Paxil.

During the testimony of several witnesses in the first trial, the jury was shown a February 7, 2003 email in which Glaxo employee, Graham Cottam, stated that he had informed Anne Bell, the project leader for Paxil, about plans to do the Ingenix pregnancy study on Wellbutrin, and “Anne wanted to be sure that we will not be looking specifically SSRIs or Paxil.”

Doctor Suzanne Parisian, a former FDA scientist, testified that the initial 2002 proposal was “to do a large database study for Bupropion in pregnancy.”

There was “nothing that addresses Paxil,” she told the jury. The “procedure had never been designed to specifically look at Paxil.”

But when the data was broken out for Paxil in the original study, it “showed the increased risk and the pregnancy was changed to Category D,” she explained.

The FDA later requested that Paxil be studied, according to the testimony of Glaxo employees and documentation, she said.

The famous neuropyschopharmacologist and professor of psychiatry from Cardiff University in Wales, Dr  David Healy, explained that Glaxo had hopes that the study would show Wellbutrin as an antidepressant that did not cause birth defects and the company could apply to the FDA to have it classified as a pregnancy category B drug instead of a C.

“It would give the message,” he said, “that this of the drugs we have available to use for women of childbearing years, this would be one of the safer ones.”

Healy told the jury that there was “no reason from the scientific point of view why they would not want to also look at Paxil.”

“And this appeared to be the FDA’s view,” he said, “because FDA said, well, you looked at Bupropion, why don’t you look at Paxil, also,” a couple years later.

When asked whether by the year 2003, he could think of any scientific reason not to do a pregnancy study with Paxil, Healy replied, “No, I can’t.”

In fact, Tracey showed the jury an internal company email written by a Glaxo employee two years later in August 2005, around the time that the results on Paxil from the Ingenix study came out, who asked the question: “Why hasn’t the company gathered data on this until now, 13, I think, years after the product was approved?”

In the case of the study on Wellbutrin, there were only 16 reports of birth defects that indicated there was a signal to do the study, Parisian told the jury. While an internal analysis conducted by Glaxo on Paxil in 2000, showed 79 cases of birth defects.

In September 2005, the conclusions of the Ingenix study were: “The use of paroxetine in the first trimester of pregnancy was associated with an increased risk of congenital malformations compared with other drugs.”

“To your knowledge, prior to 2005 did GSK ever do a single epidemiological study to determine whether or not Paxil caused birth defects?” attorney, Adam Peavey, asked Parisian.

“Not that I have seen,” she said.

Ingenix Downside

During the testimony of Dr Shira Kramer, an epidemiologist, Tracey put up a slide on the Cole paper that was published in 2007.

The paper was on a study conducted by epidemiologists who were employed by Glaxo to do the research, Kramer explained. It was a continuation of the Ingenix study that looked at Wellbutrin and then Paxil. One of the co-authors was Sara Ephross, an employee of Glaxo.

Kramer was asked to explain the importance of the Cole study. “First of all,” she said, “it was a cohort study comparing … people exposed to Paxil … to people who were exposed to other SSRIs.”

“So one very key thing for you to remember is that here the … unexposed group is not people who were not exposed to SSRIs, they were exposed to SSRIs,” she told the jury.

“That’s a very important point,” she said, “because if SSRIs are a risk factor for cardiac defects, birth defects, then the relative risk that will be generated in this study is going to be lower than it normally would if truly people were unexposed to SSRIs.”

“The other thing that is important to keep in mind,” she told the jury, “is that the information was obtained from an administrative claims database called the Ingenix Research Data Mart. “

“There was no individual, either examination or interviewing of anyone,” she explained. “The information was extracted from administrative claims data that was available.“

“The other thing that’s important,” she said, “is that initially the population that was studied covered the years 1995 to 2002, and then after the fact an additional two years were added to the study.”

“The published results, based on all of the years that were eventually included in this study, were an odds ratio for all cardiovascular malformations related to Paxil exposure of 1.46, which means that individuals who took Paxil were at 46 percent increased risk of their child having a cardiovascular malformation diagnosed at birth compared to individuals who took other, other SSRIs,” Kramer explained.

“In the second odds ratio of 1.68,” she said, “showing a 68 percent increased risk, now we are comparing women who took Paxil either alone or in combination with another SSRI, compared to the other SSRI group, either alone or in combination with other SSRIs, mono- or polytherapy.”

The published study contained an asterisk that said: “An interim analysis performed by Cole, et al, using births occurring between ‘95 and 2002 found an odds ratio of 2.0 for the association between first trimester Paxil use and cardiac birth defects.”

Kramer was asked to explain what that statement was referring to. “Initially, the study was designed to include the years 1995 through 2002 with a sampling ratio of controls to cases of 7 to 1,” she said. “That was the protocol.

“And when that analysis was done, the odds ratio, instead of being 1.46, which ultimately is what was published, was actually higher, it was 2,” she told the jury.

“That means that the exposed group had a risk of a child with a cardiac malformation two times that of the group not exposed to Paxil,” she added.

The odds ration got smaller when the Glaxo researchers, the authors of the study, “added in two additional years of data with a different sampling ratio,” Kramer explained.

It is not appropriate for an epidemiologist to do that, she said, because “you are changing the rules after you look at the data.”

It “really raises the questions as to, are you trying to influence the data,” she noted.

“I can say very clearly,” she told the jury, “that that is not considered to be appropriate conduct, scientific conduct. “

“What you are supposed to do is set up a study protocol in advance and follow it, and not change it after you have looked at the results,” Kramer explained.

It is not appropriate to find out the results and change it in the middle, she said, “for obvious reasons, it looks like you are manipulating the data to make it come out looking a certain way.”

“And if you want to do an unbiased, fair study,” she told the jury, “the only appropriate plan of action is to develop a study protocol ahead of time, to follow it, and to analyze the results and not to fool with it, not to fiddle with it and not to change it.”

While testifying, Kramer explained the meaning of “underpowering” a study. You need to have “a sufficient number of people in a study in order to test a certain research question,” she said.

“And if you are going to apply statistical tests to the data that you generate,” she told the jury, “you need to have enough people in that study to have generated enough cases of the outcome and you need to have enough people who are exposed.”

“Now, this case,” she said, “we have got a relatively rare exposure to Paxil, we have a relatively rare outcome, which is congenital cardiac birth defects, so you need to study very, very large populations in order to achieve statistical significance at these levels that we have been discussing.”

She said the “investigators, the research team,” dictates the size of the study.

Kramer went over the reasons why the odds ratio in the Cole study might be attenuated, or lower. It’s “very clear that there are certain characteristics of this study that are making this odds ratio probably lower than it really would be given certain characteristics of the study design,” she told the jury.

“One of the them is that the controls are really not unexposed to the SSRIs,” she said. “They are exposed to drugs in the same class.”

We have “observed in epidemiological literature that other SSRIs are associated with an increased risk of cardiac malformations,” she told the jury. “Therefore, it is likely that since that’s the comparison group, we have got an odds ratio in this study that’s lower than it probably would be.”

The second reason was that the analysis only included live births. “So you are missing fetuses who were miscarried,” she said. “And then there are many miscarriages that are due to birth defects.”

“You are missing fetuses that are aborted, electively aborted, because of known cardiac or other congenital malformations,” she told the jury. “You are missing stillbirths.”

And with a follow up for only nine months, she said, “you are missing congenital cardiac defects that aren’t detected until later.”

“So you have got a fairly substantial population that is not really being captured in this study of exposed fetuses,” she pointed out.

Closing Recap

During closing arguments, Tracey reminded the jury about the email with Anne Bell’s statement to make sure Paxil was not included in the Ingenix study, and said: “This document … two years before this child is born, they are affirmatively saying: We do not want to look at Paxil in pregnancy.”

In her closing argument, Varner told the jury: “Now, Mr. Tracey has talked to you about Anne Bell this morning.”

“He has said that GSK would have done anything to avoid looking at the risk for Paxil,” she pointed out.

“Well, ladies and gentlemen,” Varner said, “GSK funded the study that did look at Paxil for the risk and published preliminary findings in August of 2005.”

As soon “as even a possible link emerged in all of 2005, GSK reacted promptly and proactively to notify both FDA and doctors,” she told the jury.

“It went immediately to FDA. It immediately changed its label,” she said. “And it immediately sent out letters to doctors telling them about the changes.”

In his final summation, Tracey told the jury, “I want to talk to you about the Ingenix study because Ms. Varner said something that is very, very important.“

“She said when they found out what she says is August of 2005, within 21 days, they changed the label. Within 21 days, the doctors got the news,” he recounted.

What “she forgets to tell you is that two years prior to this, Anne Bell said, Don’t study the drug,” Tracey told the jury.

“Had they not listened to Anne Bell,” he said, “had they studied the drug in 2003, Michelle David wouldn’t be sitting here because the warning would have gone out like that.“

“We would have been two years ahead of the game,” he pointed out.

“GlaxoSmithKline did not want to study the drug,” Tracey told the jury. “The FDA made them study Paxil.”

“It was not some sort of voluntary we’re just a good drug company trying to get along,” he said. “It was we don’t want to study it and they’re forcing us to study it.”

Paxil Off-Label Promotion

Paxil is not FDA approved for use by pregnant women, so all mothers who gave birth to infants with heart defects received the drug off label. In Andy Vickery’s first case set for trial, Delaney Novak was born with heart defects after his mother, Laura, was prescribed Paxil for migraine headaches, another unapproved use.

Dr Dee Mangin is an expert witness in the Novak case. Her research and published work has focused on rational prescribing, and the influence of drug company promotion both to physicians and direct to consumers. She submitted a report on October 13, 2009, which outlines Glaxo’s off label promotion of Paxil around the time of Laura’s pregnancy.

In her report, Mangin defines off-label use as the “practice of prescribing drugs for a purpose outside the scope of a drug’s approved label – often an unproven use or one that has not been widely tested.”

“While it is legal to prescribe off label in the United States, it is illegal for companies to promote off label use,” she notes.

“The risks of off label promotion,” she says, “are that it could lead to exposure of patients to the risks of a medicine for no benefit, and furthermore they maybe denied other more effective treatment.”

“GlaxoSmithKline from 2000,” Mangin says, “mounted a multifaceted and targeted national promotional campaign that employed explicit strategies designed to promote sales of Paxil in pregnant women and women of reproductive age.”

An exhibit cited in the report from a “Paxil Tactical Marketing Plan in 2000,” states: “New Paxil data with high media interest, hot flash, postpartum, depression, pregnancy, and lactation will position Paxil as the drug of choice for women.”

“One of the known reasons that physicians change their prescribing behavior is as a response to the volume of evidence containing the same message that the physician is exposed to,” she wrote. “The so-called “Carpet Bombing” technique used in the Paxil campaign feeds directly into this.”

“There are a number of strategies companies can use to highlight use for off label conditions including distribution of individual scientific articles discussing the off label indication and use of the drug as well as mentions of off label use by key opinion leaders in continuing medical education,” the report explains.

“In relation to the off label prescribing for migraine,” Mangin says, “there is no evidence of any effectiveness over placebo for SSRIs in migraine prevention.”

Yet a paper titled, “Paroxetine in the Treatment of Chronic Daily Headache,” by Carol  Foster, MD, and Jacklyn Bafaloukos, RN, that was distributed to doctors, specifically states: “The dramatic improvement in the patients in our study suggests that paroxetine appears to be a safe and effective drug for the treatment of chronic daily headache.”

“The strategies outlined where reprints about treatment of migraine with paroxetine, large numbers of form letters containing summaries of studies of use in headache were sent to physicians and detailing and providing free samples to physicians likely to treat women with migraine were therefore encouraging use of Paxil and exposure to its risks when in reality it is no more effective in this situation than a sugar pill,” Mangin reports.

Encouragement “of unapproved use for migraine further attempted to expand the market beyond that which was medically justified and likely to lead to unnecessary exposure to the risks of Paxil,” she advises.

In an August 11, 2009 deposition, Laura’s doctor testified that Glaxo sales representatives would commonly leave reprints of articles on off label uses and salespeople did discuss the literature on the off label use of Paxil for migraines with him. One of the sales representatives visiting the doctor at the time stated in a deposition that it was his habit to distribute all such articles.

But most importantly, the doctor said he would not have prescribed Paxil to Laura had Glaxo told him back in 2000, or early 2001, that there was an association between Paxil and birth defects. He further noted that there was no benefit from Paxil that would outweigh the risks of birth defects and that he had not used Paxil in his practice since the Dear Doctor letter warned about birth defects.

Delaney suffers from a septal heart defect. “None of the information from the medical records of the family or their statements on potential genetic, environmental and pharmaceutical causes of heart defects indicates any other factor more likely to have caused her condition than the Paxil exposure,” Mangin points out.

“It is clear that if the prescribing doctor had been informed of the risk of heart defects, Laura Novak would not have been exposed to Paxil,” she notes.

In the report’s conclusion, Mangin states: “It is my opinion that this promotional campaign for Paxil was inappropriate given the scientific knowledge and what was known by the company at the time.”

“The degree of comfort with the use of this medication in the reproductive years and pregnancy is likely to be influenced by GSK’s misleading promotional campaign where concerns were minimized, efficacy was overstated, the idea of off label prescribing was seeded for migraine, and lastly the marketing specifically targeted a group at higher risk in terms of safety concerns – pregnant women and women in the reproductive age group,” she reports.

“This Paxil promotional campaign was irresponsible, and potentially disastrous from a public health perspective as it was likely to expose a much greater proportion of the population to these potential harms,” she concludes.

Glaxo’s Phone Book

During closing arguments on October 8, 2009, Tracey told the jury regarding Glaxo: “They have a telephone book full of doctors.”

Referring to an exhibit introduced during the trial, he said: “This is all the doctors that they pay to give speeches on their behalf to push their drug, to sell it, to convince other doctors to prescribe their drug.“

While Healy was testifying, Tracey had him go over some of names of doctors in the book that included Lori Altshuler, Vivian Burt, Lee Cohen, Charles Nemeroff, Jeffrey Newport, Zachary Stowe, Katherine Wisner and Kimberly Yonkers.  None of these doctors appeared to testify on Glaxo’s behalf in the trial.

What “they did was aggressively market this drug to women,” Tracey told the jury.

All “these names of people that they ghost-wrote articles for to get the doctors … to sell the drug,” he noted.

Doctor Healy told you that “they altered the prescribing practices in this country,” he recounted. “What they set out to do, they succeeded in doing. They got doctors to prescribe the drug to women.”

“And they did it,” Tracey said, “by having seminars where they would put these doctors, experts in the field, on their payroll, that the doctors would go and listen to, unwittingly knowing what they are really hearing is a marketing campaign.”

In reference to another exhibit viewed during the trial, Tracy said: “This document describes that it worked. When the doctors came out, these are the comments they made after attending these seminars: Will prescribe Paxil to pregnant women. My comfort in treating depression in pregnancy has increased. Treating pregnant patients with confidence. Will feel more comfortable giving Paxil to pregnant women.”

In citing $765 million in the US alone, between 1997 and 2005, Tracey told the jury: “This is the number for over a nine-year period this company spent to convince doctors to sell their drug, to prescribe their drug to women of childbearing years.”

“And they got a heck of a return on it,” he said. “Net. After expenses. Almost 14 billion dollars for a nine-year period.”

“Out of the 700 million dollars they spent trying to sell this drug to people,” Tracey stated, “there is not one shred of evidence in the record about how much money they spent to try to figure out whether it was going to induce birth defects.”

“And as far as I can tell in the record,” he said, “after they bought it, they did one animal study and they didn’t spend another penny.”

Evelyn Pringle is an investigative journalist focused on exposing corruption in government and corporate America. She won multiple awards for her investigative reporting from the International Center for the Study of Psychiatry and Psychology.

“Drug companies frequently hire outside firms to draft a manuscript touting a company’s drug, retain a physician to sign off as the author and then find a publisher to unwittingly publish the work,” the Associated Press said on August 19, 2009. “Drug company salespeople often present medical journal articles to physicians as independent proof that their drugs are safe and effective.”

Between 2000 and 2002, articles from the CASPPER program appeared in five medical journals. On August 21, 2009, Jim Edwards on BNET, described the CASSPER ghostwriting brochure. The document shows that the intent of CASSPER was to flood the market with ghostwritten information, he said. It stated: “Paxil Product Management has budgeted for 50 articles for 2000.”

The trial in Kilker v Glaxo ended on October 13, 2009, with a jury in Philadelphia finding that Glaxo “negligently failed to warn” the doctor treating Lyam Kilker’s mother about Paxil’s risks and the drug was a “factual cause” of Lyam’s heart defects. The family was award $2.5 million.

Ghostwriting 101

The world-renowned neuropsychopharmacologist from the UK, Dr David Healy, testified as an expert witness for the plaintiffs in the Kilker trial.

While testifying, Healy explained the process of ghostwriting to the jury.  He said ghostwriting probably began seriously in the 1980s. “It’s where an article appears under the name of usually a fairly distinguished person in the field,” he testified.

But it involves more than just the true author being concealed, he told the jury. “It’s a process where the ghostwriters work for companies who are very good at getting articles into the best journals in the field, like the New England Journal of Medicine, and recruiting some of the best known names in the field to be the apparent authors of the articles.”

“They may come from one of the big named universities like Princeton or whoever, but the actual fact the person who appears to be the author isn’t the true author,” he said. “If you were to read the article, you often don’t get any hints of who the true author of the article actually was.”

Ghostwriting impacts doctors in the real world trying to make decisions on whether to prescribe a drug in several ways, Healy told the jury. For instance, he said, if he was doing his own writing, he “would write an article on the drug, warts and all.”

“But if the article has been written by a ghostwriter working for one of the pharmaceutical companies,” he said, “the chances are the warts are somehow going to vanish.”

“The article will talk about the good aspects of the drug and will leave out the risky issues which are probably the most important things for the practicing doctor to know,” he explained.

If the ghost author comes from an extremely distinguished university, doctors reading the article will think it has to be right, he said. “The simple fact that the article is going to be apparently written by this big named person and appears in an extremely good journal means that most average doctors will think this has to be true,” he told the jury.

It’s not just the case of the doctor who reads the article being deceived, he said. “It’s the fact that the credibility of the institution is and the name is being used to sell the drug, as well.“

Healy came face-to-face with ghostwriting when one of the drug companies offered to ghostwrite his articles, he said. Since then, he has researched the ghostwriting process to assess how common it is.

The assessment found that “at least half, maybe more, of the articles that appear in major journals under the names of the best known people in the field, are ghostwritten when they have to do with pharmaceutical drugs,” he told the jury.

“If they have to do with the drugs that are being sold at the moment, the ones that are fashionable at the moment, then these articles are highly likely to be ghostwritten even when they appear in the very best journals,” Healy said.

Ghostwriting Up Close

While testifying, Healy told the jury that he was familiar with companies that Glaxo hired to ghostwrite literature and put other doctors’ names on it. “I think the leading firm in the field was one called STI,” he said. “This stands for Scientific Therapeutics Information.”

The jury was shown a July 28, 2003, document sent to the Glaxo product manager for Paxil, by Sally Laden, working for STI, which stated: “Thank you for offering me the chance to work with you to write two review articles.”

“This letter summarizes my fees for this project,” Laden wrote. “The safety paper is priced higher because of a greater number of named authors and the anticipated additional work involved in assessing the CR data in progress.”

For the development of the manuscript, and up to five drafts, the price quoted was $12,000. One of the topics for a manuscript was on the safety of antidepressants in breast-feeding.

“The first draft will be the first run through the material,” Healy told the jury. “She will have put the article together laying out the issues, laying out the references, structuring the paper up in the way that the journal she actually expects that this paper is going to go to will want the article structured.”

Draft 2 goes back to Glaxo again and the author, whoever is actually going to put their name on the paper. Then draft 3 goes back to Glaxo and the author for sign-off, and then there will be a final version that goes to the journal, Healy explained. Then draft 5 is revisions from journal reviewers, he said.

He noted that Laden said the safety paper is more expensive because there was going to be more authors. “I should emphasize that more authors here does not mean more authors writing the paper,” Healy told the jury. “It means more names appearing on the authorship line.”

“She has to recruit people and the people whose names are on the authorship line get paid for being authors,” he explained.

Sally Laden’s “name has appeared on a range of different articles that have been produced for GlaxoSmithKline, not just on the issue of giving drugs to women of childbearing years but across the board,” Healy said.

During Healy’s testimony, the family’s lead attorney from Houston, Sean Tracey, introduced the actual manuscript by STI. “This is an article that is going to go to a journal,” Healy said. “It has been authored by Ms. Laden, contrary to what appears there.”

The names Zachary Stowe and Jeffrey Newport appeared on the authorship line. Healy noted that Draft 4 stated: “Final article cover page to be removed.”

“The cover page will be removed,” he explained, “because the journal will treat the article quite differently if they think that the true author is not on the authorship line.”

Healy said the paper was an example of ghostwriting. “It is going to go to a journal called Psychopharmacology Bulletin,” he testified. “And in this particular issue of the journal where this paper later comes out, every paper in that issue of the journal has to do with Paxil.”

The jury was then shown the actual article that was published and it was the exact same article but without Laden’s name on it.

Healy testified that Stowe runs the women’s mental health program at Emory University and publishes on SSRIs and women’s health issues, with publications favorable to Paxil, and also gives seminars and talks for other doctors which outline “how it can be a good thing to treat women of childbearing years with Paxil.”

He was not allowed to tell the jury how much Glaxo had paid Stowe over the last year or two, which was revealed by an investigation led by Iowa Senator, Charles Grassley, as the ranking Republican on the US Senate Finance Committee. The amount Stowe got paid “is not public knowledge where you can show me a document that says it,” the judge said.

However, Stowe’s Glaxo earnings are most certainly public knowledge.  A google search in December 2009, with the following three key words in quotes, “Stowe” “GSK” “paid,” brought up 15,800 hits.

On June 10, 2009, in reference to Stowe, the Wall Street Journal reported, “Emory University has disciplined a prominent psychiatrist who was being paid by an antidepressant maker at the same time he was conducting federal research about the use of such drugs in pregnant women.”

The National Institute of Mental Health said “it is reviewing Stowe’s activities, prompted by a letter from a U.S. Senate committee that said Stowe received $253,700 in 2007 and 2008 for “essentially promotional talks” for the drug maker GlaxoSmithKline,” the June 11, 2009 Atlanta Journal-Constitution reported.

The charts with dates for Stowe’s promotional talks reveal that many times he gave two talks for Glaxo on the same date and made five grand per day, in addition to payment for all traveling expenses. On one date, he billed $96 for meals alone.

For ready reference, the list of academics in the field of psychiatry identified by Grassley’s investigation thus far, as not fully disclosing money from drug companies, includes Joseph Biederman, Thomas Spencer and Timothy Wilens at Harvard, Charles Nemeroff and Zackery Stowe from Emory; Melissa DelBello at the University of Cincinnati; Alan Schatzberg, president of the American Psychiatric Association, from Stanford; Martin Keller at Brown University; Karen Wagner and A John Rush from the University of Texas; and Fred Goodwin, the former host of the radio show, “Infinite Minds,” broadcast for years by National Pubic Radio, before it was thrown off the air.

The supplement to the Spring 2003, “Psychopharmacology Bulletin,” found online, sure enough shows the ghostwritten paper, “Clinical Management of Perinatal Depression: Focus on Paroxetine,” with the names Stowe and Newport, along with papers by Martin Kelly, Charles Nemeroff, Alan Schatzberg, Karen Wagner, and Kim Yonkers, for a total of fourteen Paxil papers altogether.

Under “Disclosure,” the article ghostwritten by Laden stated: “This work was supported by an unrestricted educational grant from GlaxoSmithKline. Doctor Stowe serves as scientific advisor for and receives research grants from Pfizer and GlaxoSmithKline. He also receives grant support from Wyeth.”

The disclosure that the work was supported with a grant from Glaxo would not tell a doctor reading the paper that it was actually written by somebody else, Healy said.

While testifying, Healy explained that an “unrestricted educational grant, if I were to receive one, it would assume that I am saying things that are relatively favorable to the pharmaceutical company who has given me the educational grant.”

“If I am saying things hostile to the drug,” he said, “I will not get an unrestricted educational grant, although the word “unrestricted” suggests that I should.”

Stowe’s undisclosed income above was from Glaxo alone. In August 2007, he was listed as an author on a study titled, “Atypical Antipsychotic Administration During Late Pregnancy,” in the American Journal of Psychiatry.

According to the disclosure section, Stowe has received research support from Glaxo, Pfizer, and Wyeth, has served on advisory boards for Glaxo, Wyeth, and Bristol-Myers Squibb, and has served on speaker’s bureaus and/or received honoraria from Glaxo, Lilly, Pfizer, and Wyeth.

The second author on the ghostwritten paper, Jeffrey Newport, is the associate director of Emory’s Women’s Program. Newport was also an author on the “Atypical Antipsychotic” study. He has received research support from Glaxo, Lilly, Janssen, the National Alliance for Research on Schizophrenia and Depression, NIH, and Wyeth, and, he has served on speaker’s bureaus for Glaxo, AstraZeneca, Lilly, Pfizer, and Wyeth, according to the disclosures.

The next person the jury heard about was Charles Nemeroff. He was also an author on the atypical study. Nemeroff was the Chief of Psychiatry at Emory, until he lost the position last year, Healy told the jury. “He’s possibly best known or was the best known psychiatrist in the United States.”

“He influenced an awful lot of heads of departments, professors of psychiatry, general people within the field of academic mental health, and through them and an awful lot of prescribing doctors here in the U.S. And, indeed, perhaps worldwide,” Healy testified.

A link to “Articles” on the Emory website in mid-2009, brought up roughly 90 studies and papers that include the co-author Nemeroff.

Healy said he believed Nemeroff was one of the founding members of the Paxil advisory board and he participated in continuing medical education seminars with talks on Paxil.

Nemeroff would have been “the key person in producing the kinds of talks with slides that would have been held for large audiences of doctors, and then those slides and talks would have been distributed out to different doctors in the field who hadn’t been at the major meetings as he gave his talk,” Healy told the jury.

During his testimony, Tracey showed Healy a document from a continuing medical education seminar titled, “Fertility, Mood and Motherhood,” and Healy said the material for the seminar was prepared by Glaxo for Nemeroff.  It was again supported by unrestricted educational grant from Glaxo and Nemeroff “was reimbursed for his role in this,” Healy pointed out.

Healy was also not allowed to testify about Nemeroff’s fall from grace at Emory, how much he was paid by Glaxo, or his failure to disclose over a million dollars from drug companies.

Dr Bernard Carroll, a past chairman of the department of psychiatry at Duke University Medical Center, summarized the Nemeroff saga well on the Healthcare Renewal website on November 3, 2008, in writing: “The fallout to date includes his severance from several NIH-funded projects at Emory University School of Medicine, a freeze of NIH funding for a major center grant, and his stepping down from Emory’s chair of psychiatry while an internal investigation proceeds.”

During her cross examination of Healy, Glaxo’s lead attorney, Chilton Varner, presented an exhibit showing a continuing medical education presentation given by Nemeroff.

“Can you see that in this continuing medical education program Doctor Nemeroff says that paroxetine, sertraline, fluvoxamine, (are) not associated with increased risk of teratogenicity or other complications?” she asked Healy.

“Yes, I do,” he replied.

In small print, the disclosure for the presentation showed Nemeroff had received research grants and participated in the speakers bureau and consulted for Glaxo, Eli Lilly, Solvay and Pfizer.

During re-direct, Tracey asked Healy to tell the jury what the actual results of the study that Nemeroff was discussing in the presentation showed, and specifically when Paxil was looked at alone. The results “showed that there was a 1.8-fold increase in the odds ratio of a birth defects to the women who have been taking Paxil during pregnancy,” Healy testified.

“Overall, for this group of drugs there was an increase in risk,” he said, “but specifically for Paxil the risk was greatly increased.”

“And beyond that,” Healy stated, “what isn’t included here in the conclusions, overall there was a — on this group of drugs, there was a doubling of the rate of miscarriages on the drug compared with the rate of miscarriage for the women who are being compared who weren’t on the drug.”

“There was also an increased rate of women going on to voluntarily abortions on the drug,” he added.

One of the lead authors on the study was Gideon Koren. “Doctor, without giving any details,” Tracey asked Healy, “do you know whether Doctor Koren has ties to the pharmaceutical industry?”

“I know he has,” Healy said.

During his opening statement, Tracey told the jury that 1998 was a big year for Paxil because a study came out by a doctor named Gideon Koren, and a researcher named Kulin, that looked at Paxil and two other SSRIs.

The study compared women who took SSRIs, to women who didn’t take any SSRIs, and the number of birth defects in the two groups was the same. “So Doctor Koren concluded that SSRIs appear to be safe,” Tracey said.

“Within, literally within 24 hours,” he told the jury, “GSK’s marketing machine cranked up and they faxed this information to their entire sales force.”

And the sales force took this information and began to use it to sell to women, he noted. “What they didn’t tell anybody was this,” Tracey said. “That when you separated Paxil out from the other SSRIs, you saw that Paxil was causing birth defects, that there was an increased risk of birth defects in this study in these women when you looked at Paxil by itself.”

“That was not in the paper,” he said. “That information was not found out until two years ago.”

While testifying, Healy was barred from telling the jury about Koren’s involvement in one the biggest academic research scandals in history a few years back when he sent vicious anonymous letters to discredit fellow researchers and denied doing so until DNA evidence from postage stamps proved he was lying years later. In September 2003, the Canadian Association of University Teachers reported on the disciplining of Koren in the CAUT Bulletin as follows:

“The Ontario College of Physicians and Surgeons has formally reprimanded University of Toronto professor of medicine Dr. Gideon Koren. He had written anonymous harassing letters about Dr. Nancy Olivieri and three colleagues during Olivieri’s dispute with the Hospital for Sick Children, the University of Toronto and Apotex Inc. He then had lied repeatedly to conceal his responsibility. The college also cited him for additional misconduct, in research.”

The Teachers Association further explained in the Bulletin: “The college’s finding of research misconduct was in relation to a study on a drug to treat a blood disorder in children that Koren and Olivieri had once collaborated on. Olivieri identified risks that the drug was ineffective and caused liver damage, and voiced her concerns despite legal warnings from its maker, Apotex. Koren differed and, contrary to accepted norms, published an article on the drug using data from other researchers, including Olivieri, without their knowledge or consent.”

“Koren had received hundreds of thousands of dollars in funding from Apotex after the company had terminated the drug trials in its efforts to prevent Olivieri from disclosing risks to patients, as well as the hundreds of thousands of dollars in funding he had received during the trials,” the newsletter reported, citing an journal article by the authors of “The Olivieri Report.”

Apotex marketed a generic version of Paxil, or paroxetine.

The penalty had been jointly proposed to the discipline committee through prior agreement between Koren’s attorney and counsel for the college, the Bulletin noted.  In its decision, the committee said it was “deeply troubled by this case” and “seriously considered administering a more severe penalty” than that proposed, as it wished “to express unequivocally its condemnation of Dr. Koren’s misconduct.”

Glaxo Money Still Flowing

In a December 14, 2009 report on Pharmalot, Ed Silverman noted that Glaxo had published a list of fees paid out to US healthcare professionals for speaking and consulting services for the three month period of April 1, 2009 to June 30, 2009. “By its own tally, Glaxo paid $14.6 million to approximately 3,700 US docs and other healthcare professionals,” he reported.

Although Glaxo paid out millions of dollars over the years to the doctors discussed in this article, not one of them was called to testify as an expert in the first birth defect trial.

Evelyn Pringle is an investigative journalist focused on exposing corruption in government and corporate America. She won multiple awards for her investigative reporting from the International Center for the Study of Psychiatry and Psychology.

Detainees sit around the exercise yard in Camp 4, the medium security facility within Camp Delta at Naval Station Guantanamo Bay, Cuba. In Camp 4, highly compliant detainees live in a communal setting and have extensive access to recreation. Photo by U.S. Army Sgt. Sara Wood

Please support TPR contributor Andy Worthington’s important work on Guantanamo by making a donation to his investigative fund.

When it comes to dealing with the thorny question of how to close Guantánamo, the remaining prisoners have been caught between two competing systems since President Obama took office last January, and the result, to put it mildly, has been confusing.

Under President Bush, prisoners were cleared for release by military review boards, established to review the supposed evidence against them, and to determine whether they constituted an ongoing threat to the US. This appeared to be a maddeningly arbitrary system, but it led to the release of hundreds of the prisoners.

In June 2008, the Supreme Court added a second layer of review, of a more substantial nature, when it gave the prisoners constitutionally guaranteed habeas corpus rights; in other words, the right to challenge the basis of their detention in a US court. This right had been established by the Supreme Court in June 2004, leading to the filing of habeas petitions on behalf of the majority of the prisoners, but these were all stalled when Congress submitted to the President’s wishes and passed legislation that purported to strip the prisoners of these rights, in the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006.

Guantánamo and habeas corpus under George W. Bush

Following the Supreme Court ruling in June 2008, District Court judges began hearing the prisoners’ habeas corpus petitions, and the prisoners secured, for the first time, an objective review of what the government claimed to be evidence proving that they were connected to al-Qaeda and/or the Taliban. The result was a disappointment for the government, although it came as no surprise to those who had been studying Guantánamo closely, and who knew that the majority of the prisoners had been seized by America’s Afghan and Pakistani allies, at a time when substantial bounty payments were being offered, and that the majority of the supposed evidence against the men came from their own interrogations, or those of other prisoners, which were often conducted in conditions where torture, coercion or bribery were prevalent.

From October 2008 to January 2009, 23 prisoners won their habeas petitions, and just three cases were won by the government. In the case of 17 Uighurs (Muslims from China’s Xinjiang province), the government gave up all pretense that they were “enemy combatants,” having established, soon after they were seized in December 2001, that their only enemy was the Chinese government, and having suffered a humiliating court defeat shortly after the Supreme Court ruling last June. A judge also dismissed the government’s claims against five Algerian-born Bosnian citizens, who had been kidnapped by US agents from Sarajevo in January 2002, in connection with a non-existent plot to bomb the US embassy, and the case against a Chadian national, who was a child at the time of his capture by Pakistani police in a raid on a mosque in Karachi.

In both cases, the judge — Richard Leon, an appointee of George W. Bush — dismissed the government’s supposed evidence by ruling, in the case of the Bosnians, that a supposed informer was unreliable, and in the case of the former child prisoner, Mohammed El-Gharani, that unreliable witnesses in Guantánamo (whose unreliability was known to the authorities) had concocted a fictional story about him.

Judge Leon also ruled that the government had established a case against one of the Bosnians — in connection with purported plans to recruit men to fight in Afghanistan — and against two other prisoners with supposed connections to the Taliban or al-Qaeda in Afghanistan, but it was a poor start for the government’s defense of its rationale for holding men for seven years without charge or trial, and these same problems resurfaced under Barack Obama.

Guantánamo and habeas corpus under Barack Obama

In Obama’s first year in office, nine prisoners won their habeas petitions, and six lost. Those who won included a Syrian who had been tortured by al-Qaeda as a spy, an Afghan (also a child at the time of capture) whose confessions were tainted by threats of torture, and a Kuwaiti businessman who had been tortured in Guantánamo until he came up with false confessions that were only finally exposed by a judge last September. In all these cases, false confessions and unreliable witnesses fatally undermined the government’s case.

Moreover, in the majority of cases that the government won, the fault lines in the Bush administration’s rationale for defining men as “enemy combatants” became apparent: most were, at best, peripheral characters in the war between the Taliban and the Northern Alliance that preceded al-Qaeda’s terrorist attacks on September 11, 2001, and should, by any objective measure, have been held as enemy prisoners of war, and protected by the Geneva Conventions.

Although the majority of the nine prisoners who lost their habeas petitions were cast back into the unprecedented world of indefinite detention conceived by the Bush administration, awaiting a substantial overhaul of the very basis of detention policies in the “War on Terror” that has not yet happened, it was clear that the courts provided the first objective review of the Bush administration’s policies. It muddied the waters, therefore, when President Obama established an interagency Task Force to review all the prisoners’ cases, and to come up with its own conclusions about who should be released, and who should be put on trial.

Obama’s Task Force muddies the waters

The Task Force struggled to pull together information about the prisoners that was scattered throughout various department and agencies, and took until January this year to complete its findings, advising the President that 35 prisoners should be put forward for trials, that 47 should continue to be held indefinitely without charge or trial, and that the rest — around 110 prisoners at the time — should be released.

The announcement revealed both the strengths and the weaknesses of the review process. It was, of course, heartening that only 35 prisoners would face trials, as this figure corresponded to analyses revealed by intelligence officials over the previous eight years, demonstrating that less than 5 percent of the 779 prisoners held throughout Guantánamo’s history had any meaningful connection to al-Qaeda, the Taliban leadership or international terrorism. Similarly, the decision to release 110 men was a swifter judgment than the courts were able to achieve — although it should be noted that the progress of the habeas petitions was severely obstructed by the Justice Department, where lawyers dragged their heels providing necessary information to the defense, and also that an executive decision to release a prisoner did not carry the weight of a court verdict, and did not, crucially, remove the stigma of having been held for years as an “enemy combatant.”

However, the biggest disappointment was the Task Force’s recommendation that 47 men be held indefinitely without charge or trial. “Preventive detention” was at the heart of the Bush administration’s baleful experiment in holding prisoners neither as prisoners of war, protected by the Geneva Conventions, nor as criminal suspects to be put forward for trial on charges related to terrorism, and it was profoundly disturbing to hear President Obama explain, as he did in May last year, that the men in question were those who “cannot be prosecuted for past crimes, in some cases because evidence may be tainted, but who nonetheless pose a threat to the security of the United States.” Essentially, what this statement revealed was that the administration was prepared to rely on information obtained through torture as a reason for continuing indefinite detention without charge or trial.

Moreover, the Task Force’s announcement in January — and Obama’s apparent endorsement of it — also ignored the role of the courts, for the simple reason that the majority of these men had outstanding habeas corpus petitions, and that, as a result, it was up to the District Court judges, and not the executive, to decide whether the supposed evidence against them was at all reliable.

Such is the muddle created by the Task Force — and such is the secrecy surrounding its decisions — that it is impossible to know whether the nine men consigned to indefinite detention after losing their habeas petitions in the courts are included in the 47 men that the Task Force advised should be held indefinitely. I can only presume that this is the case, but, as events last week showed, we are now in a position where rulings on prisoners’ habeas petitions no longer stand independently, but are actively compared to the results reached by a Task Force whose findings are secret.

The latest habeas corpus rulings

Last week, judges ruled on the habeas petitions of three Yemeni prisoners. The unclassified opinions have not yet been released, so the judges’ reasoning is not yet available, but in two cases the prisoner’s habeas petitions were denied, and in the third case the petition was granted. The two men who lost their petitions are Suleiman al-Nahdi and Fahmi al-Assani, and the man who won was Uthman Abdul Rahim Mohammed Uthman. To confuse matters further, both al-Nahdi and al-Assani had been cleared by a Bush-era military review board, while Uthman had not. It is, of course, not known what decision had been reached by the Task Force regarding these men.

Although the judges’ unclassified opinions are not yet available, a glance at these men’s stories, as available through publicly accessible Pentagon documents, indicates how the decisions may have been made. As I explained in my book The Guantánamo Files, Othman, who was 22 years old at the time of his capture, “said that he had traveled between Kabul and Khost teaching the Koran from March to December 2001.” Although he “admitted that he had stayed at a Taliban house in Quetta, Pakistan, which was the normal entry point for volunteers who had come to fight with the Taliban,” he stated that this was “only because he had been told that it was the only way for him to enter Afghanistan.”

If Othman had a plausible argument that he had traveled to Afghanistan as a missionary, this was not the case with al-Nahdi and al-Assani. Both had been seized in the Tora Bora region of eastern Afghanistan (where a major showdown between al-Qaeda and the US military’s Afghan proxies had taken place in November and December 2001), and, although it is clear from the cases of many of the men held at Guantánamo that passing through Tora Bora to escape the chaos of Afghanistan did not prove that they were involved in any kind of military activity (because thousands of civilians were also trying to escape), both men came up with accounts which suggested that they were at least peripherally involved in the conflict.

As I explained in The Guantánamo Files, al-Assani, who was 24 years old at the time of his capture:

was a recent recruit to the Taliban cause, a foot soldier in an inter-Muslim civil war that had suddenly gone global. He traveled to Afghanistan in the summer of 2001, trained briefly at al-Farouq [a training camp established by an Afghan warlord but associated with Osama bin Laden in the years before the 9/11 attacks] and ended up in Tora Bora, but only, he said, because “I was fleeing for my life with many other people to avoid the bombing that was imminent,” and not, as was alleged, because he “was assigned to augment Taliban and al-Qaeda forces already in defensive positions in Tora Bora.” He added that he was with a group of Pakistanis, trying to get to Pakistan, when they were bombed by US forces and he was “the sole survivor.”

He was then taken by Afghan forces to a hospital in Jalalabad, and delivered to US forces some months later.

Al-Nahdi, who was 27 years old at the time of his capture, explained that he had been inspired to assist the Taliban through a fatwa issued by a notorious cleric, and had spent a month at al-Farouq. He added that:

[He] saw Osama bin Laden in Tora Bora, when he “talked about the jihad for approximately one hour and then a senior al-Qaeda operative [identified as Ayman al-Zawahiri, al-Qaeda’s No. 2] made a few comments,” and then went into the mountains, where he took turns guarding a foxhole with 15 other people. Responding to an allegation that he “may have fought in Tora Bora,” he said, “I never fired a weapon. I was only sitting,” and, when asked if he would have shot at Americans, he [said]: “I did not see any Americans. If I had seen any Americans, I would not have shot at them. I would have only shot at them if they had shot at me first, to defend myself.”

Guantánamo’s continuing existence as a legal black hole

Over eight years after Guantánamo opened, it is clear from these three rulings that the fate of the men in question is still dictated more by the disgraceful innovations of the Bush administration than it is by any objective notions of justice. Othman may be released, but only when the Obama administration decides that it is politically safe to free any cleared Yemeni prisoners (having capitulated to unprincipled criticism following the failed Christmas Day bombing attempt by suspending all releases to Yemen until further notice). Moreover, it is impossible to know whether any of these three men were cleared for release by Obama’s Task Force, and, if so, what it means if a prisoner loses his habeas petition, when the Task Force had recommended his release.

Behind all this, of course, lies the problem that I have been highlighting ever since Judge Leon ruled, last January, that Ghaleb al-Bihani, another Yemeni, could continue to be held indefinitely because he had worked as a cook for Arab forces supporting the Taliban, and had not magically spirited himself out of Afghanistan on the day that the US-led invasion began, in October 2001. Absurdly, it seems to me, this was when the Taliban’s civil war with the Northern Alliance suddenly became a “War on Terror,” in which US forces, who hooked up with the Northern Alliance after years of indifference to their cause, were conventional soldiers, but those who opposed them were terrorists.

If there were truly any justice, Ghaleb al-Bihani — and Suleiman al-Nahdi and Fahmi al-Assani — would have been held as prisoners of war according to the Geneva Conventions, and not as special “War on Terror” prisoners whose detention was endorsed by Congress in the Authorization for Use of Military Force, passed in the wake of the 9/11 attacks, which empowered the President to seize and hold anyone he regarded as having a connection to al-Qaeda and/or the Taliban. Crucially, this would mean that they could continue to be held until the end of hostilities (whenever that may be), but it would also mean that they would not have been subjected to the abusive innovations of the “War on Terror,” and would have been shielded from coercive interrogations and “enhanced interrogation techniques.”

I have serious doubts about whether it is acceptable to continue holding peripheral figures seized during the US-led invasion of Afghanistan in October 2001 for longer than the duration of the Second World War, but even if this were the case, no one in the Executive branch, Congress or the judiciary has fully addressed the fact that, instead, they are still effectively in the black hole dreamed up by the Bush administration when the President accepted, in February 2002, that he had the right to hold a new category of human being — “enemy combatants” without rights — outside the Geneva Conventions.

This story was originally publishe on the website of the Future of Freedom Foundation.

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

Detainees sit around the exercise yard in Camp 4, the medium security facility within Camp Delta at Naval Station Guantanamo Bay, Cuba. In Camp 4, highly compliant detainees live in a communal setting and have extensive access to recreation. Photo by U.S. Army Sgt. Sara Wood

On Wednesday, four prisoners were released from Guantánamo: an Egyptian, a Libyan and a Tunisian arrived in Albania, and a Palestinian arrived in Spain. All four had been cleared by military review boards at Guantánamo under the Bush administration, and had then been cleared by President Obama’s interagency Task Force, but, like dozens of prisoners in Guantánamo, they could not be repatriated because of fears that they would be tortured if returned to their home countries or subjected to other ill-treatment, or because they were effectively stateless.

The Spanish government, which declared last week that it would take up to five cleared prisoners from Guantánamo, announced that the first of these men arrived in Spain on Wednesday. The Spanish Interior Minister Alfredo Perez Rubalcaba told reporters that the man is Palestinian, but would not give his name, citing privacy concerns.

According to the press agency dpa, Rubalcaba explained that he “would get a residence permit, the possibility to work and freedom of movement in Spain, though Guantánamo prisoners taken by European countries could not leave those countries.” He added that Spain would only accept prisoners “with no criminal charges in the European Union, the United States or their countries of origin.”

As well as accepting the Palestinian, the newspaper Periódico reported that other prisoners, “believed to include a Syrian and a Yemeni citizen,” were “expected to arrive in Spain shortly,” adding that they will be “placed in different locations under the care of NGOs,” and will also be “placed under surveillance not only to protect the Spanish public, but also to protect the individuals from al-Qaeda reprisals over their possible revelations to US intelligence services.”

Cementing its role as America’s closest ally when it comes to clearing up “the mess” that is Guantánamo (to quote President Obama’s words from last May), the Albanian Ministry of Interior announced on Wednesday that it had accepted three cleared prisoners, who could not be repatriated because of the fears outlined above. Albania has now taken eleven cleared prisoners from Guantánamo, having accepted eight in 2006, when no other country in the world was prepared to do so (five Uighurs, an Algerian, an Egyptian and an ethnic Uzbek from the former Soviet Union).

Announcing the arrival of three prisoners in Albania, the Ministry of the Interior stated, “This transfer is a result of the engagement of the Albanian government in backing the Obama administration’s policy to close the detention center in Guantánamo and transfer prisoners to friendly and safe third countries.” In a press release, the US Justice Department identified the three men as: Abdul Rauf Omar Mohammad Abu al-Qusin, a Libyan; Sharif Fati Ali al-Mishad, an Egyptian; and Saleh bin Hadi Asasi, a Tunisian.

Their stories, like those of the majority of the 584 prisoners released from Guantánamo, demonstrate, yet again, that, behind the blustering rhetoric of former Vice President Dick Cheney and his swarming acolytes, the majority of the men held at Guantánamo had no involvement with terrorism, and that a disturbingly large number of them were innocent men seized by mistake.

Of the three men rehoused in Albania, for example, one was a businessman, living in Europe, who had traveled to Afghanistan to provide humanitarian aid, one was a veteran of Afghanistan’s war against the Soviet Union, who had married an Afghan woman, and was seized in a house in Lahore, Pakistan, far from the battlefields of Afghanistan, and the other man, as was common in 2001, before the 9/11 attacks, had been persuaded to travel to Afghanistan to help the Taliban defeat their enemies, the Northern Alliance, in a long-running civil war that had nothing to do with al-Qaeda or international terrorism, and had not raised a finger against US forces.

Sherif El-Mashad: An Egyptian businessman and humanitarian aid worker

Sharif al-Mishad (also identified as Sherif El-Mashad) is an Egyptian, born in 1976. A talented athlete and carpenter in his youth, he enrolled in a technical school to learn woodworking, cabinetmaking, painting, tiling, plumbing and roofing, and, after graduating, spent three years working in Sinai at some of Egypt’s largest beach resorts. There, he began to learn Italian from the tourists, and in 1997, after his father died, decided to travel to Italy, to stay with his uncle, an Italian citizen who lived in Como, in the hope of finding better paid work to provide for the family.

Once he had secured a work permit, he worked in a restaurant and a bar, but soon found that his skills as a craftsman would pay better. After working as an apprentice with two painting companies, he obtained a license from the Chamber of Commerce in Como to work as an independent contractor, and set up his own company, “Sherif El-Mashad,” running the business out of his home.

In the spring of 2001, he met a wealthy Kuwaiti businessman, who encouraged him to travel to Afghanistan to do charity work. As he explained to his lawyers, at the London-based legal action charity Reprieve, he saw this as “a dual opportunity,” allowing him not only to network with a well-connected businessman, but also to help those less fortunate than himself by distributing humanitarian aid — food, clothes, and blankets. Providing an analogy to his lawyers, he explained that the plan was akin to “organizing a charity gala with a prospective business partner.”

As a result of this meeting, El-Mashad booked a round-trip ticket, intending to stay in Afghanistan for a couple of months, before returning home to work. It was obvious that he had no intention of staying any longer, because, as his lawyers, explained, two days before he left Italy in July 2001, he had billed a customer almost €15,000 for painting services to be collected on his return.

His mother, who is the deputy principal of a school in Egypt, explained in 2006 how she had advised her son against traveling to Afghanistan. “I never wanted him to go on that trip”, she said, “because I knew that the region was unstable and so many events were taking place there, but he was stubborn. He was very kind and grateful to his family, though.” A week after his arrival, according to his mother, “he called his uncle, who lives in Italy, and told him that he arrived and asked him to reassure me.”

After that, he effectively disappeared off the face of the earth, until his uncle called to say that he had received a postcard from Guantánamo (via the International Committee of the Red Cross), in which he wrote that “he had been visiting a friend in Afghanistan and subsequently enlisted in a ‘rescue organization’ that offered ‘humanitarian aid to the Afghani people.’” Although he ended up staying in Afghanistan for longer than he intended, helping his friend, who, as he explained in Guantánamo, “passed out donations to help the Afghani people,” they remained safe in Kabul until November 2001, when, with the Northern Alliance approaching, and rumors spreading that Arabs were no longer safe, they set off for the Iranian border, intending to return home. As he also explained, “I had a valid visa to Iran and a return ticket with an Iranian airline.” However, when they discovered that the border crossing was closed, they realized that they would have to leave via Pakistan, but were detained by Pakistani soldiers after crossing the border and arriving in a small village. El-Mashad then spent three weeks in a Pakistani prison in Peshawar, and was then flown to the US prison at Kandahar airport, where he spent several more months before being transferred to Guantánamo.

There seems to be no reason to dispute this story, and El-Mashad clearly explained it at length to his interrogators in Guantánamo, telling them how he traveled to Kabul, how he met up with the Kuwaiti businessman, how he “heard of the attacks in America while listening to the radio,” how he and “all who were present with him were sorrowful and none of them were happy,” and how he fled from Afghanistan and was seized.

However, once he was in US custody, he became the victim of patently false allegations made by other prisoners, either through coercion or torture, or through the promise of preferential treatment, of the kind that are disturbingly familiar to those who have studied closely the rulings in the prisoners’ habeas corpus petitions over the last year and a half.

One of these allegations was made by a prisoner who was rescued by US forces from a prison in Afghanistan, and then transported to Guantánamo, even though he had been imprisoned as a spy by al-Qaeda and had been subjected to horrendous torture. This prisoner claimed that, in early 2000, El-Mashad  “participated in torturing him through beatings and electric shocks”, even though, as El-Mashad pointed out, he was in Italy in early 2000 and had the documents to prove it.

He also told his lawyers that, in the early days of his imprisonment, “I was first accused of aiding the Arabs in Bosnia. Then they changed the accusation that I was there just for training. In both cases, it’s impossible that I was in Bosnia at the time of the war in 1991, simply because at that date I was 14 years old! From 1991-1997 (the duration of the Bosnian war) I was studying at my school and I never left my country to anywhere. I have the proving documents.” He also explained that another set of false allegations came about because the US authorities mistook him for a significant figure in al-Qaeda, which led to a number of other false allegations, including claims that he trained recruits in urban warfare at a military training camp. Another false allegation, made by an unnamed “source”, was that he sold videotapes of the bombing, in 2000, of the USS Cole.

“Throughout my life, I was never involved in any banned or illegal activities by any means,” he told Cori Crider of Reprieve in August 2008, during his first visit with a lawyer from the legal action charity, adding, “I don’t have any file with any police office or any bad record with any authority.” He also explained that Italian agents had visited him in Guantánamo and had confirmed that there was no case against him. “They told me they knew I was innocent and they would ask the United States to release me,” he said, adding, “My case is very clear. I have physical evidence to defend myself against these charges.”

Abdul Ra’ouf al-Qassim: A Libyan seized in Pakistan

Abdul Rauf al-Qusin (also identified as Abdul Ra’ouf al-Qassim, and named in court documents as Abu Abdul Raouf Zalita) is a Libyan, born in 1965, who was cleared for release from Guantánamo in 2006. A soldier in the Libyan army from 1983 to 1989, he had then deserted, traveling to Afghanistan “to immigrate and to start a new life,” as he explained to his military review board in Guantánamo in May 2005. After fighting with the mujahideen until 1993, when the last remnants of the Soviet regime fell, he “traveled back and forth between Pakistan and Afghanistan” — at one point studying at university in Quetta — and also met and married an Afghan woman, Rahima, with whom he had a daughter, Khiria, who has spent the whole of her young life without her father.

Al-Qassim was captured in Lahore in May 2002, at the house of a Pakistani, after escaping from war-torn Afghanistan with his pregnant wife, but although it was clear that he had not taken up arms against the Americans, it was far less clear that he would not be regarded as a threat by the government of his home country. At his review in 2005, he explained (via a military officer assigned to him instead of a lawyer) that he had received military training at two Libyan camps in Afghanistan, but only because he was living there, and also admitted that he had joined the Libyan Islamic Fighting Group — exiled opponents of the Gaddafi regime — but only “out of desperation — he was broke, had no place to go, was hungry, unemployed and had no way to support himself.” He added that his family “did not receive monetary support from the [LIFG], but he received food, shelter and an allowance for clothes.” He also agreed with previous statements he had made: that he “did not believe in violence,” and that he “angrily defined [al-Qaeda’s] leadership and members as ‘savages’ who twist the meaning of Islam, thereby hurting all Muslims.”

Although al-Qassim stated that a Libyan delegation, who visited Guantánamo in 2004 (and were actually flown there by the CIA), told him that they “knew he was with the Libyan Islamic Fighting Group only by name,” that he was “obligated to be with them,” and that they would “take care of him,” he repeatedly told his Assisting Military Officer that he was “afraid of returning to Libya.” His AMO reported, “He said he does not want to go to Libya because he feels he cannot trust them and because they put people in prison for no reason. He said he feels that if he returns to Libya, even after being released by the United States, he would be sent back to prison.” Such was his concern that the Presiding Officer noted, “For the record, make sure that we put in our report that the Detainee is afraid of returning to Libya.”

In spite of this, the US government sought to repatriate al-Qassim, and his lawyers — at the Center for Constitutional Rights — fought a legal battle for over three years to prevent his forcible return. In a court filing in December 2008 (PDF), they noted his ongoing legal limbo:

The Government has cleared him for transfer from Guantánamo, and has twice attempted to repatriate him to Libya, the country from which he fled to Afghanistan more than a decade ago in order to avoid religious persecution. Petitioner has a credible fear that he will be subject to imprisonment, torture and possible summary execution if he is forcibly returned to Libya, and he has resisted all attempts to repatriate him to that country. He remains detained in Camp 6, an isolation facility, more than six years after his detention and nearly two years after the Government’s first notice of intent to transfer him out of Guantánamo.

Saleh Sassi: An insignificant adventurer

The third man released in Albania, Saleh bin Hadi Asasi (more commonly known as Saleh Sassi, and also identified in Guantánamo as Sayf bin Abdallah) is a Tunisian, born in 1973, who, like the two men described above, was cleared for release by a military review board under the Bush administration, and by President Obama’s Task Force.

A welder and a skilled laborer, he moved to Italy in 1998, hoping to find work and a better life, and settled in Turin, where he secured a work permit and found employment in the construction industry. Apparently persuaded to travel to Afghanistan during a vacation from work, he reportedly spent some time at a mountain outpost north of Kabul, and was later wounded when a truck he was traveling in was shot at. Hospitalized, first in Kabul, and then in Khost, he was transported to the Pakistani border, where he was seized by the Pakistani authorities.

In Guantánamo, as his lawyers at Reprieve noted, he was often held “in brutal conditions.” The vast majority of his imprisonment was spent in isolation, which caused him to suffer clinical depression. In discussions with his lawyers, he explained that his imprisonment was “a long and unending nightmare.” He was also visited by teams of foreign interrogators — both Italian and Tunisian. In late 2002, Tunisian agents came to Guantánamo and left no doubt about what awaited him if he were to be returned to Tunisia, which included “water torture in the barrel.”

What now, and what next?

With the release of these four men, 188 prisoners remain in Guantánamo, but while the Albanian and Spanish governments are to be congratulated for offering homes for men who would otherwise rot in Guantánamo for the rest of their lives, the Italian government, which is only interested in taking prisoners who can be put on trial in Italy (as demonstrated with the transfer of two Tunisians in December) ought to be ashamed that it did not accept Sherif El-Mashad, who was so clearly seized by mistake, and who, with family in Italy and viable skills that he could use once more, has, essentially, been betrayed by the country which he once called home.

Above all, though, the greatest shame must settle on the United States, which still refuses to accept its own responsibility to provide new homes for cleared prisoners who cannot be repatriated. The exact number of prisoners in this category is difficult to establish, because the Obama administration has not provided details of the nationalities of these prisoners (who now number 106). When the Task Force announced its final decisions about the prisoners last month, it was reported that around 60 of the 106 are Yemenis. These men will not be released until the Obama administration finds some spine, having capitulated to fearmongering about Yemen after the failed plane bomb at Christmas, and suspending all further releases to Yemen. Back in October, it was reported that three others are Saudis (who, in theory, could be returned tomorrow), which means that around 42 of the cleared prisoners are awaiting new homes.

Two of these, who have been offered a new home in Switzerland, are amongst the remaining seven Uighurs, another is an Uzbek who has been offered a new home in Latvia, and three others (plus one of the Yemenis) are, as mentioned above, expected to arrive in Spain shortly. However, that still leaves 36 men waiting for new homes, and it seems probable that the countries of Europe, which, before Wednesday, had taken 12 cleared prisoners (with Bermuda and Palau also taking another ten of the Uighurs), will run out of largesse before all 36 are rehoused, leaving the US government — and its people — with a stark choice: hold them forever, or, as was planned last April (before Obama scuppered the proposal), bring some of them to live in the United States.

This is not only the right thing to do; it will also demonstrate to the American people — and to its surplus of hysterical pundits and politicians — that not everyone who was held at Guantánamo was a terrorist, bent on the destruction of the United States. Why is it, I wonder, that Europeans — in Albania, Belgium, France, Hungary, Ireland, Portugal, Slovakia, Spain and Switzerland — can understand that between 90 and 95 percent of the men held at Guantánamo had no connection to terrorism, and that many of these men are still imprisoned, awaiting an end to their long and lawless ordeal, but Americans cannot?

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.

Najibullah Zazi

With attempted terrorist Najibullah Zazi pleading guilty to three criminal charges before a federal judge in New York, Attorney General Eric Holder says that Zazi’s case proves that the US Justice Department can effectively prosecute terrorists.

And he noted during a news conference Monday following the guilty plea that the trial of self-professed 9/11 mastermind Khalid Sheikh Mohammed and his co-conspirators could still be held in New York City, despite widespread opposition from Republicans and Democrats.

On Monday, the Justice Department reported that Najibullah Zazi, an Afghan native and legal permanent resident of the US, pleaded guilty to conspiring to orchestrate a terrorist attack within the United States, as well as to charges of providing material support to al-Qaeda.

“This was one of the most serious terrorist threats to our nation since September 11th, 2001, and were it not for the combined efforts of the law enforcement and intelligence communities, it could have been devastating,” Holder said. “This attempted attack on our homeland was real, it was in motion, and it would have been deadly. We were able to thwart this plot because of careful analysis by our intelligence agents and prompt actions by law enforcement. They deserve our thanks and praise.”

At a news conference following the announcement, Holder said the plea deal “demonstrates that our federal civilian criminal justice system has the ability to incapacitate terrorists, has the ability to gain intelligence from those terrorists and is a valuable tool in our fight against terrorism.”

According to a Department of Justice press release, Zazi and other conspirators traveled to Afghanistan with the purpose of joining Taliban militants in combat against US and allied forces. Shortly after their arrival in Peshawar, Zazi and his group were recruited by al-Qaeda, and were given formal training with explosives. Zazi intended to use TATP (Triacetone Triperoxide) explosives to conduct an attack on New York City subway lines, coordinating the attack with the anniversary of the 9/11 attacks.

The subway bombing plot represented the most serious terrorism threat to America since the 9/11 attacks, Holder said.

Zazi’s case was prosecuted by the U.S. Attoney’s Office for the Eastern District of New York, with assistance from the District of Colorado office, and the Justice Department’s National Security Division Counterterrorism Section.

Holder and the Obama administration have come under heavy Republican fire as of recent for their urging to hold the trials of self-professed 9/11 mastermind Khalid Sheikh Mohammed and co-conspirators in a New York criminal court.

Holder asserts that the Zazi guilty plea proves that his department is capable of handling the 9/11 trials.

“To take this tool out of our hands to denigrate the use of this tool flies in the face of the facts, in the face of the history of the use of that tool and is more about politics than it is about facts,” Holder said.

Zazi’s guilty plea and cooperation with law officials came after he was warned that some of his family members could face possible criminal charges related to the foiled terrorist attack. The pressure resulted in a 10-page sealed plea agreement.

As the case points out, the criminal court system provides for plea-incentives that can provide useful information to the prosecution, an option that is not readily available within the military tribunal system.

“The criminal justice system also contains powerful incentives to induce pleas that yield long sentences and gain intelligence that can be used in the fight against al-Qaeda. We will use all available tools whenever possible against suspected terrorists,” Holder told reporters during Monday’s news conference.

Despite the criticism and efforts to stymie a criminal trial of Mohammed and the alleged 9/11 conspirators, Holder still says that the possibility of a Manhattan trial is in play, according to the New York Daily News.

The newspaper quoted Holder as saying that a decision on where to hold the trial is expected “relatively soon.”

“But a Manhattan trial – strongly opposed by New York officials – remains in play, Holder said,” according to the Daily News.

Ray Storez is a staff writer for The Public Record based in Connecticut.

The Justice Department, FBI and U.S. Postal Inspection Service today announced that the investigation into the 2001 anthrax attacks, which killed five individuals and sickened 17 others, has formally concluded.

Earlier today, representatives of the FBI and Justice Department provided a 92-page investigative summary along with attachments to victims of the attacks, relatives of the victims and appropriate committees of Congress. This document sets forth a summary of the evidence developed in the “Amerithrax” investigation, the largest investigation into a bio-weapons attack in U.S. history. As disclosed previously, the Amerithrax investigation found that the late Dr. Bruce Ivins acted alone in planning and executing these attacks.

The investigative summary and the attachments are now accessible to the public and have been posted to the Justice Department Web site at www.usdoj.gov/amerithrax under the Freedom of Information Act. In addition, roughly 2,700 pages of FBI documents related to the Amerithrax case are now accessible to the public and have been posted to the FBI website at http://foia.fbi.gov/foiaindex/amerithrax.htm under the Freedom of Information Act.

The Amerithrax Task Force, which was comprised of roughly 25 to 30 full-time investigators from the FBI, U.S. Postal Inspection Service and other law enforcement agencies, as well as federal prosecutors from the District of Columbia and the Justice Department’s Counterterrorism Section, expended hundreds of thousands of investigator work hours on this case. Their investigative efforts involved more than 10,000 witness interviews on six different continents, the execution of 80 searches and the recovery of more than 6,000 items of potential evidence during the course of the investigation. The case involved the issuance of more than 5,750 grand jury subpoenas and the collection of 5,730 environmental samples from 60 site locations.

For background on this case please see this story.

The Rupert Murdoch-owned New York Post, citing unnamed Obama administration officials, says New Haven has been discussed as one possibility.

Topping the list, the source said, is upstate Otisville — home to a federal penitentiary where the terrorists, now at Guantanamo Bay, could be housed. Other cities being considered, the source said, include White Plains in Westchester County and New Haven, Conn.

The Hartford Courant, citing the Jan. 29 Post report, said, “the old granite federal courthouse on the east side of the New Haven Green was under consideration as a possible alternative site.” A current online version of the Post report does not contain that detail.

A spokeswoman for New Haven Mayor John DeStefano, Jr., the city has not been in contact with Justice Department officials about the possibility.

“No, we were not contacted by the Federal government about holding the trials here,” Jessica Mayorga, DeStefano’s spokeswoman, told The Public Record Wednesday.

Two high-profile federal prosecutors based in Connecticut, Nora Dannehy and John Durham, both of who are still conducting separate, independent investigations into Bush administration-related abuses, including the destruction of torture a tapes and the firing of nine US attorneys, would be the likely picks to try Mohammed and the other alleged conspirators.

Tom Carson, a spokesman for Dannehy and Durham, had no comment on the possibility of the 9/11 trial being moved to New Haven. A spokesperson for the Department of Justice was unavailable for comment because of massive snowfall in the Washington, D.C. area that effectively shut down the city.

The Courant noted that “experts said that the U.S. District Court in New Haven, designed originally as an easily accessible U.S. Post Office, would be difficult to protect and lacks capacity. What’s more, moving the trial from New York to Connecticut could provide the defendant, Khalid Sheikh Mohammed, with a legal issue that could be challenged.”

The Courant report added:

The only recent high-security, terror-related trial in Connecticut took place in New Haven in 2008. A federal jury, in a trial involving elaborate security measures, convicted former U.S. Navy signalman Hassan Abu-Jihaad of passing military secrets to London-based al-Qaida sympathizers. Abu-Jihaad was accused of crimes in California, Arizona and aboard ship, but was tried in New Haven because his e-mail to London passed through a computer server in Connecticut.

Two weeks ago, the Obama administration signaled that the Justice Department could change the venue of the 9/11 trial.  Last week, Senator Joseph Lieberman (I-Conn.) sent a message to the White House in a cosponsored a bill to cut federal funding for a civilian 9/11 trial.  Lieberman, and legislation sponsor Senator Lindsey Graham, both cited the price tag for the trial as one concern.

Spokesman for the mayor, Jason Post said, “The cost estimate was prepared by the NYPD.”  The NYPD was contacted but did not return a comment at the time.  It is still unclear how exactly the price tag for the trial, $200 million, was figured.

Graham and Lieberman claim that it will be cheaper and more secure to try Mohammed and the four co-conspirators in military commissions.  Which civil liberty groups such as the ACLU, have staunchly opposed.

“Terrorists are criminals, not warriors, and the U.S. should try all terrorism cases in federal courts where they belong,” said Ben Wizner, Staff Attorney of the ACLU.  Wizner went on to say that American courts are capable of handling the trials, and that the “military commissions system is designed to ensure convictions rather than fair trials, and still fails to ensure basic due process guaranteed by U.S. and international law.”

Additionally, retired members of the military spoke out against the federal government trying terrorists as soldiers, in military commissions.  “In a letter to President Obama last month, 33 retired military officials wrote that terrorists should be treated as mass-murderers,” Main Justice reported.

A report released by the Department of Justice in 2009 said, “[The Department’s] efforts have resulted in the securing of 319 convictions or guilty pleas in terrorism or terrorism-related cases arising from investigations conducted primarily after September 11, 2001.”

It is unclear whether the convictions and guilty pleas cited came out of civilian trials or military commissions.

Joshua Durkin is a contributor to The Public Record based in Connecticut. He can be reached at joshua.durkin@pubrecord.org

Mumia Abu-Jamal. Photo/Wikicommons

The recent decision by the US Supreme Court to send convicted police killer Mumia Abu-Jamal’s case back down to the Third Circuit Court of Appeals in Philadelphia, with instructions for a three-judge panel there to reconsider its decision to uphold the lifting of the prominent African-American journalist’s death penalty, is only the latest in a long string of examples of how courts at all levels have made special exceptions to precedent in order to try and kill this particular prisoner.

The high court found on January 19, that Frank Spisak, a self-described Nazi and killer of three in Ohio, had been properly sentenced, because at the time the Ohio Supreme Court affirmed his death penalty on appeal, “settled law” was that the jury instructions given to his jury had been proper. And under the terms of the 1995 Effective Death Penalty Act, federal courts, including the Supreme Court, have to defer to the judgements of state courts unless those courts’ decisions are deemed “unreasonable.”

Where it gets complicated though, is that subsequent to the conclusion of Spisak’s state appeals, the US Supreme Court, in a 1988 decision called Mills v. Maryland, ruled that ambiguously worded jury ballot forms and confusing or misleading jury instructions on sentencing by judges were grounds for reversing a death sentence. Mills was never made retroactive (one of the more repugnant features of many Supreme Court decisions), but Abu-Jamal’s state appeals didn’t even properly begin until after his 1995-96 Post-Conviction Relief Act hearing, and so the same finding made by the Supreme Court majority in Spisak’s case–that the confusing jury instruction standards were “settled law” at the time–cannot be made in Abu-Jamal’s case.

But the Supreme Court order sending Abu-Jamal’s case back down to the Third Circuit, right or wrong, hardly means Abu-Jamal’s battle is over, much less lost, despite his already having spent an astonishing 28 years in solitary confinement on Pennsylvania’s hellish death row.

Even if the Third Circuit were to reverse itself, and decide against all logic that because of another Supreme Court decision made last month, reimposing the death penalty on Frank Spisak, the self-proclaimed Nazi killer of three men, Abu-Jamal should also die, it would not mean he can simply be marched off to a gurney for a lethal injection.

As Hugh Burns, the assistant district attorney in Philadelphia who has been leading the effort by the DA’s office to have Abu-Jamal executed for the last decade and a half, noted in an article in the Philadelphia Inquirer, threre are at least three more avenues of appeal of Abu-Jamal’s death sentence that still need to be considered at the district Federal Court level (actually there are four).

That’s because when Federal Judge William Yohn, way back in 2001, issued his historic ruling revoking Abu-Jamal’s death sentence on the grounds that the jury ballot form used to determine sentencing, and the instructions of trial judge Albert Sabo, had been confusing on the question of mitigating circumstances, he mooted those other avenues of appeal, saying that he didn’t need to rule on them. The sentence was already lifted.

Now that Yohn has been reversed on that lifting of the death sentence, though, Abu-Jamal has a right to have Judge Yohn go back and look at the other three challenges to his sentence. And those challenges are very solid and serious. (Actually, I’ve always considered it a measure of how confident Judge Yohn was in the correctness of his decision on the jury instructions claim that he didn’t bother to deal with the other four appeals claims–something he could have done simultaneously.)

The first unresolved appeal claim goes to the heart of a defendant’s right to representation and a fair trial. Abu-Jamal’s attorney, Anthony Jackson, testified under oath at a Post-Conviction Relief Act hearing in 1995 to the obvious truth that did absolutely nothing to prepare for the sentencing portion of the trial. He called no witnesses to testify to Abu-Jamal’s character, an astonishing lapse which left the prosecutor free and unchallenged in portraying Abu-Jamal as a cop-hating terrorist.

Jackson prepared no witnesses, though Abu-Jamal’s siblings and mother were on hand and ready to testify, as were many others in the community. Jackson, astonishingly, didn’t even request a delay of a few days after the guilty verdict in order to prepare for the sentencing hearing. When the judge ordered the session to begin the next day, Jackson went along meekly. It didn’t help that on the morning of the sentencing hearing, Jackson was awoken first at 6 am by fire trucks at his home–the result of a “prank call”– and that after he got to court, he received a frightened and frightening call from his 15-year-old son saying that someone had called his home telling the boy “You are the one we want. We’ll be coming over to get you!” (Any bets on who was making those calls?) Abu-Jamal in his 1999 habeas appeal the federal court claims his constitutional right to representation was denied by Jackson’s dismal performance at the sentencing hearing.

A second line of appeal, also mooted and left unresolved by Judge Yohn, was a claim that Abu-Jamal’s first, fourth, fifth and fourteenth amendment rights were violated when Prosecutor Joseph McGill improperly used Abu-Jamal’s membership, as a 15-year-old boy, in the Black Panther organization, in trying to portray him as a vicious cop-hater. McGill came to court with a yellowed newspaper clipping from the Philadelphia Inquirer in which the young Abu-Jamal, quoting Chinese Communist Party leader Mao Tse-tung, had told reporters that “power flows from the barrel of a gun.” It didn’t matter that the article explained that Abu-Jamal had made that statement in the context of the murder days earlier of Panther leader Fred Hampton by Chicago Police, and that the context made it clear he was referring to the power of police.

McGill took the quote out of context and made it appear as though Abu-Jamal was advocating war on the cops. In any event, the quote had been made 12 years before, when Abu-Jamal was just a boy. The reality was that, far from being at war with police, Abu-Jamal as an adult had a sterling record or no arrests or convictions. Here is a case where the Pennsylvania courts and federal courts in the Third Circuit have repeatedly overturned death convictions where membership in allegedly anti-social organizations was cited by prosecutors in an effort to tarnish defendants before a jury, but where a special exception has been apparently been carved out for Abu-Jamal. Judge Yohn has yet to rule on this line of appeal.

Third, there remains to be considered an appeal on the grounds that prosecutor McGill improperly sought, in his final argument to the jury in the sentencing hearing, to diminish the jurors’ sense of responsibility for their decision. McGill told the jury, “Ladies and gentlemen, you are not asked to kill anybody. You are asked to follow the law. The same law that I keep on throwing at you, saying those words, law and order.

I should point out that it’s the same law that has for six months provided safeguards for this defendant. The same law, ladies and gentlemen, the same law that will provide him appeal after appeal after appeal….The same law, ladies and gentlemen, that has made it so because of the constant appeals…nobody at all has died in Pennsylvania since 1962 for an incident that occurred in 1959.”

Again, the courts at all levels–in Pennsylvania, in the Third Circuit, and the US Supreme Court itself–have all overturned death penalty sentences based upon just such statements having been made to juries at trials. Indeed, another case prosecuted successfully by McGill himself was overturned because he made exactly the same statement to a jury, claiming jurors need not feel they are personally ordering a man’s death. So this appeal too needs to be considered in full by Judge Yohn.

Finally, there is a fourth avenue of appeal which was also mooted and left unresolved by Judge Yohn. That is the claim that the prosecutor knowingly withheld evidence in police files which showed that Abu-Jamal had no criminal record and no propensity for violence. Specifically, Abu-Jamal, years after his trial, obtained his FBI file–largely composed of materials obtained by the FBI from Philadelphia Police and the Philadelphia Police Department’s so-called “Red Squad.”

That file, 600 pages long, shows that surveillence of Abu-Jamal ended in 1973. A 1974 memo at the end of the file states, “In March 1973, per bureau instructions, captioned subject was deleted from ADEX [the list of people deemed subversive and slated as part of COINTELPRO to be rounded up and detained in the event of a national emergency] and no additionalinvestigation conducted concerning his activities.

Sources, however, have continued to report periodically on COOK [Abu-Jamal’s family name] and, although he has not displayed a propensity for violence, has continued to associate himself with individuals and organizations engaged in Extremist activities.” Clearly this file, stating that Abu-Jamal did not appear to be a violent person, had been available to the prosecution, and should have been offered to the defense. This appeal of Abu-Jamal’s conviction based upon a claim of prosecutorial misconducdt must also be considered by Judge Yohn.

Once the Third Circuit has reconsidered its decision on the jury instruction issue–and the outcome there is by no means certain, with Abu-Jamal’s attorney Robert Bryan planning a spirited argument that Abu-Jamal’s case is substantively different from the Spisak case–and if it were to rule against Abu-Jamal, there would first of all be a new appeal of that decision back to the US Supreme Court. Only if the high court were to uphold such a decision would these four other issues finally go back before Judge Yohn.

It appears that even if the courts continue to rule against this now world-renowned journalist who has spent more than half his life sitting confined in a small cell on death row, his controversial case, dogged as it is by charges of judicial misconduct, racial bias, prosecutorial misconduct, purjured prosecution witness testimony and political interference, will continue to drag on unresolved for years to come.

Dave Lindorff is a Philadelphia-area journalist and has followed the Abu-Jamal case for more than 12 years. His book on the case, Killing Time: An Investigation into the Death Row Case of Mumia Abu-Jamal, was published in 2003 by Common Courage Press. Lindorff’s work is available at www.thiscantbehappening.net.

Balli Aviation Ltd., a subsidiary of the United Kingdom-based Balli Group PLC, pleaded guilty today in the U.S. District Court for the District of Columbia to a two-count criminal information in connection with its illegal export of commercial Boeing 747 aircraft from the United States to Iran, announced David Kris, Assistant Attorney General for National Security; Channing D. Phillips, U.S. Attorney for the District of Columbia; Thomas Madigan, Acting Deputy Assistant Secretary of Commerce for Export Enforcement; and Adam J. Szubin, Director of the Department of Treasury’s Office of Foreign Assets Control.

Under the plea agreement, Balli Aviation Ltd. agreed to pay a $2 million criminal fine and be placed on corporate probation for five years. The $2 million fine, combined with a related $15 million civil settlement among Balli Group PLC, Balli Aviation Ltd., the U.S. Department of Commerce’s Bureau of Industry and Security (BIS), and the U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC), that was also announced today, represents one of the largest fines for an export violation in BIS history. Under the terms of the related civil settlement, Balli Group PLC and Balli Aviation Ltd. have agreed to pay a civil penalty of $15 million of which $2 million will be suspended if there are no further export control violations. In addition, Balli Aviation Ltd. and Balli Group PLC are denied export privileges for five years, although this penalty will be suspended provided that neither Balli Aviation nor Balli Group commits any export violations and pays the civil penalty.  Under the terms of the settlement, Balli Group PLC and Balli Aviation, Ltd. will also have to submit the results of an independent audit of its export compliance program to BIS and OFAC for each of the next five years.

According to count one of the information filed with the court, beginning in at least October 2005, through October 2008, Balli Aviation Ltd. conspired to export three Boeing 747 aircraft from the United States to Iran without first having obtained the required export license from BIS or authorization from OFAC, in violation of the Export Administration Regulations (EAR) and the Iranian Transactions Regulations. More particularly, the information states that Balli Aviation Ltd., through its subsidiaries, the Blue Sky Companies, purchased U.S.-origin aircraft with financing obtained from an Iranian airline and caused these aircraft to be exported to Iran without obtaining the required U.S. government licenses. Further, Balli Aviation Ltd. entered into lease arrangements that permitted the Iranian airline to use the U.S.-origin aircraft for flights in and out of Iran.

Count two of the information states that Balli Aviation Ltd. violated a Temporary Denial Order (TDO) issued by BIS on March 17, 2008, that prohibited the company from conducting any transaction involving any item subject to the EAR. Starting in or about March 2008 and continuing through about August 2008, Balli Aviation Ltd. willfully violated the TDO by carrying on negotiations with others concerning buying, receiving, using, selling and delivering U.S.-origin aircraft which went to the Export Administration Regulations.

“As this case demonstrates, corporations that conduct business with Iran in violation of U.S. export laws and sanctions face serious consequences,” said David Kris, Assistant Attorney General for National Security. “The many agents, analysts and attorneys who worked on this successful investigation and prosecution deserve special thanks for their efforts.”

“These charges reflect the commitment of the United States to vigorously enforce our laws against corporations that illegally seek to acquire U.S. aircraft from the U.S. on behalf of Iranian customers,” said Channing Phillips, Acting U.S. Attorney for the District of Columbia. “Those who seek to profit by violating and circumventing U.S. trade laws should take heed of today’s guilty plea by Balli Aviation.”

“The significant fine is a direct consequence of the level of deception used to mislead investigators,” said Thomas Madigan, Acting Deputy Assistant Secretary of Commerce for Export Enforcement. “The case agents worked through a complex corporate maze to obtain the facts and bring the violators to justice.”

“Today’s case should serve as further warning of Iran’s continued efforts to circumvent sanctions and obtain U.S. technology. Together with our colleagues from the Justice and Commerce departments, OFAC will continue to aggressively pursue both domestic and foreign entities that seek to violate U.S. sanctions programs by exporting goods to Iran from the United States.” said Adam J. Szubin, Director, Office of Foreign Assets Control.