Former Office of Legal Counsel Acting Chief Steven Bradbury

An article in the July-Sept. 2004 edition of the journal Military Intelligence (PDF) sheds further light on the origins of the Army Field Manual (AFM) on interrogation, FM 2-22.3, HUMINT Collector Operations (PDF), that became operational in September 2006. The AFM became the de jure standard for government interrogations in the “Global War on Terror” as a matter of policy with the passing of the Detainee Treatment Act of 2005 (DTA). Except, in 2005, the AFM was an earlier version.

By September 2006, the newer version included less restrictive controls on a number of questionable interrogation techniques, and had seriously lightened the restriction on the use of drugs in interrogations. It also included an annex to the manual, Appendix M, that was meant strictly for detainees not covered by Geneva POW protections, i.e., the detainees at Guantanamo and elsewhere. Appendix M allowed for the use of isolation, sleep deprivation, sensory deprivation (as a “field expedient” method), and anticipated at least some use of environmental and diet “manipulations.”

But back in Summer 2004, Command Sergeant Major Lawrence J. Haubrich, U.S. Army Military Intelligence Corps, writing for the journal Military Intelligence (PDF) about military ethics in the aftermath of the Abu Ghraib scandal, noted that the new AFM had already been vetted by Judge Advocate General corps’ [JAG] legal officials.

The DA [Dept. of the Army] Office of the JAG and JAG School reviewed each draft of FM 2-22.3, HUMINT Collector Operations, and each draft has been (and still is) in compliance with all Geneva Conventions, international agreements, and U.S. law. Additionally, the manual clarifies the responsibilities of HUMINT collectors and clearly delineates between HUMINT collection and other activities associated with internment operations. Finally, the manual now includes HUMINT collection techniques like strategic debriefing and elicitation as a result of the recent HUMINT and Counterintelligence Integrated Concept Team and lessons learned.

We can’t, of course, know what drafts the JAG officials had seen in 2004. We don’t know, for instance, whether or to what degree the techniques that ended up in the final document’s Appendix M were then included in the earlier drafts. The fact that the manual went through numerous iterations was noted in a couple of blog posts by Marcy Wheeler, who noted the existence of a little examined Bush-era Office of Legal Counsel memorandum (PDF) on the AFM and its Appendix M.

“The Department of Defense (“DOD”) has asked us to review for form and legality the revised drafts of the Army Field Manua1 2-22.3 (“Human Intelligence Collection Operations”), Appendix M of FM2-22.3 (“Restricted Interrogations Techniques”), and the Policy Directive regarding DOD’s Detainee Program,” Acting Attorney General Stephen Bradbury wrote in an April 13, 2006 “Memorandum for the Files.” Naturally, Bradbury found that Appendix M was “consistent with the requirements of the law, in particular with the requirements of the Detainee Treatment Act of 2005…”

Wheeler noticed a couple of years ago, however, that the description of Appendix M in the Bradbury memorandum was not congruent with the version that was ultimately published.

Speaking of all those references to specific paragraphs of Appendix M, note that Bradbury wrote this memo on April 13, 2006. Appendix M was not finalized and released until September 6, 2006. And the contents of Appendix M changed significantly between the time Bradbury wrote his approval letter and the time the Appendix was put into effect five months latter…. Even the title changed–from the plural “Restricted Interrogation Techniques” to the singular “Restricted Interrogation Technique–Separation”….

A couple of examples of some of the changes Wheeler pointed out (bold emphases in original):

Bradbury cites M-23 for language limiting the use of Appendix M only to DOD interrogators specially trained and certified to use these techniques; that language now appears in M-22, but the paragraph now authorizes properly trained contract interrogators and “non-DOD personnel” to use the techniques as well.

Bradbury cites M-21 for medical limits, including that “Detainees determined to be unfit for interrogation may not be interrogated” (note, this does not appear to be a direct citation from the appendix, but rather Bradbury’s summary of it); in the current Appendix, language on medical oversight appears in several places (M-16, M-20, M-23, M-24, M-30), but never includes an explicit restriction against using the techniques on an unfit detainee….

Then, just last August, Wheeler noted this in a legal opinion issued in the Donald Vance/Nathan Ertel lawsuit against Donald Rumsfeld for the torture they suffered when falsely held prisoners in Iraq:

The plaintiffs contend that, after the enactment of the Detainee Treatment Act, Secretary Rumsfeld continued to condone the use of techniques from outside the Army Field Manual. ¶ 244. They allege that on the same day that Congress passed the Detainee Treatment Act in December 2005, Secretary Rumsfeld added ten classified pages to the Field Manual, which included cruel, inhuman, and degrading techniques, such as those allegedly used on the plaintiffs (the plaintiffs refer to this as “the December Field Manual”). Id. The defendants describe this allegation as speculative and untrue, but we must accept these well-pled allegations as true at the Rule 12(b)(6) stage of the proceedings.8

On appeal, the plaintiffs 8 cite a newspaper article reporting on the development of this classified set of interrogation methods. See Eric Schmitt, “New Army Rules May Snarl Talks with McCain on Detainee Issue,” New York Times (Dec. 14, 2005), available at http://www.nytimes.com/2005/12/14/politics/14detain.html (last accessed Aug. 4, 2011) (“The Army has approved a new, classified set of interrogation methods… The techniques are included in a 10-page classified addendum to a new Army field manual…”). The plaintiffs contend that Secretary Rumsfeld eventually abandoned efforts to classify the Field Manual, but that the “December Field Manual” was in operation during their detention and was not replaced until September 2006, after plaintiffs had been released, when a new field manual (Field Manual 2-22.3) was instituted.

This is evidence of the likelihood that the changes to the AFM materially changed it from what the JAG officials vetted in 2004. Nevertheless, I don’t believe we have heard any protest or even a peep of protest from JAGs or other military legal sources over the AFM that was ultimately issued. The Bradbury memorandum itself is a deeply dishonest document, and relies heavily for its opinion on the earlier OLC memos by Yoo, Bybee, and Bradbury himself. In the memorandum, Bradbury cites the earlier OCL torture memos as having “previously concluded that techniques virtually identical to these [i.e., in Appendix M] are consistent with applicable U.S. legal obligations…”

He then refers readers to the July 14, 2004 testimony of Patrick F. Philbin before the House Select Committee on Intelligence (PDF). “There is no need to revisit those determinations here,” Bradbury wrote. But since the Obama administration withdrew by Executive Order (13491) “All executive directives, orders, and regulations… from September 11, 2001, to January 20, 2009, concerning detention or the interrogation of detained individuals,” where does that leave the legal assurances regarding Appendix M?

This question is of high importance as, even though numerous human rights organizations (Center for Constitutional Rights, Physicians for Human Rights, Amnesty International, Open Society Foundations, and others) have expressed grave misgivings about the abuse inherent in the current Army Field Manual instructions, the government, including key Democrats on the Intelligence and Armed Services committees, and the Obama administration itself, support the current AFM as the relevant and sufficient standard for all U.S. government military and CIA interrogations.

The inadequacy of the Bradbury memorandum in vetting “legal” techniques for interrogation, techniques said to be “Geneva compliant” is laughably belied by the fact that four of the six “restricted interrogation techniques” discussed by Bradbury are redacted in the declassified release of the memorandum. Truly, the government must think we can’t see what is right before our eyes.

Additionally, of the two techniques openly discussed — “Mutt and Jeff” (Good cop/Bad cop) and “False Flag — both were ultimately incorporated into the main text of the final AMF draft. Even though the other techniques were left unclassified in the final version, the government still censors the techniques Bradbury was describing in his 2006 memo.

In a particularly Bradburyian moment of bad conscience, or possibly only to cover his ass, the former top Bush lawyer remarks in a footnote, the “six restricted interrogation techniques” might not satisfy the DTA if used on “all DoD detainees” (italics in original). Even more: “Nor does our analysis suggest that these techniques would be lawful if used in the criminal justice process as a means of obtaining information about ordinary crimes.”

Hence we can see the result of the Bush-Gonzales-Yoo removal of the GWOT detainees from protected POW status soon after 9/11. Since Appendix M is still used in interrogations, we must conclude the Obama administration has never withdrawn the order that removed Al Qaeda/Taliban and associated prisoners from Geneva protections. Or has the administration has issued new opinions that have never been made public?

It must not matter to the Congressional oversight mavens, who have said not a peep about these issues, and continue to push the AFM and Appendix M. Nor does the proud JAG corps, who in some cases were known to protest the torture as it unfolded at Guantanamo, or the unfairness of the “Star Chamber” military commissions process, have any update I know of from their early stamp of approval given to the AFM.

One could not hope for much from a government that slaughtered two million Indochinese, and was never held accountable for that and many crimes that followed. It may be tilting at windmills to believe that the ongoing use of torture, even as one version of it is enshrined now in a formal military document, would become a matter of some social protest or media condemnation. This is a society and a nation totally adrift in a sea of moral nihilism when it comes to military and intelligence matters.

Jeffrey Kaye, a psychologist living in Northern California and a regular contributor to Truthout and The Public Record, blogs about civil liberties and issues revolving around the US government’s torture program at The Dissenter. He can be reached at sfpsych at gmail dot com. Follow Jeff on Twitter: @Jeff_Kaye

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The provisions relating to Guantánamo and why they are also important

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

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

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

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

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

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

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

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

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

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

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

The President’s advisors concluded:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

When considering the effects of unemployment, and the desultory, really uncaring response of the current Democratic administration, as well as Republicans in Congress, to the human devastation of joblessness, it is important to consider the terrible emotional and psychological effects of such unemployment. Such effects are well-documented, but rarely mentioned in articles or blog postings.

A well-regarded 2010 study by the John J. Heldrich Center for Workforce Development at Rutgers, the State University of New Jersey, “The Anguish of Unemployment,” quantified the tremendous emotional suffering engendered by unemployment. “‘The lack of income and loss of health benefits hurts greatly, but losing the ability to provide for my wife and myself is killing me emotionally,’ wrote one respondent to the survey.” (See PDF for Powerpoint presentation of results.)

Just last April, the Centers for Disease Control (CDC) released a study that showed that suicide rates rise and fall in tandem with the business cycle. The study covered the years 1928-2007. According to the CDC press release:

The overall suicide rate rises and falls in connection with the economy, according to a Centers for Disease Control and Prevention study released online today by the American Journal of Public Health. The study, “Impact of Business Cycles on the U.S. Suicide Rates, 1928–2007″ is the first to examine the relationships between age-specific suicide rates and business cycles. The study found the strongest association between business cycles and suicide among people in prime working ages, 25-64 years old.

“Knowing suicides increased during economic recessions and fell during expansions underscores the need for additional suicide prevention measures when the economy weakens,” said James Mercy, Ph.D., acting director of CDC’s Injury Center’s Division of Violence Prevention. “It is an important finding for policy makers and those working to prevent suicide.”

As a practicing psychologist, seeing clients for almost 20 years, I can say that the current economic depression has had a terrible effect on the people I see. I have also heard about more suicides in a short period of time than I have in years — actually, ever. While this could be a statistical fluke, and I myself would never draw stark conclusions from the sample of one clinician, the spike in reported suicides is certainly something that fits the known epidemiological risks that accompany high unemployment.

Because of confidentiality issues, I can’t talk about my own clients, but let’s consider some other academic studies over the years about the effects of economic stressors, such as unemployment.

“After unemployment, symptoms of somatization, depression, and anxiety were significantly greater in the unemployed than employed.” — Effects of unemployment on mental and physical health. American Journal of Public Health, May 1985.

“Controlling for a number of individual characteristics, unemployed individuals are found to suffer significantly higher odds of experiencing a marked rise in anxiety, depression and loss of confidence and a reduction in self-esteem and the level of general happiness even compared with individuals in low-paid employment. This finding highlights the involuntary nature of unemployment.” — “The effects of low-pay and unemployment on psychological well-being: A logistic regression approach.” Journal of Health Economics, January 1998.

“Unemployment was associated with an increased risk of suicide and death from undetermined causes. Low education, personality characteristics, use of sleeping pills or tranquilizers, and serious or long-lasting illness tended to strengthen the association between unemployment and early mortality.” — “Unemployment and Early Cause-Specific Mortality: A Study Based on the Swedish Twin Registry.” American Journal of Public Health, January 2004.

“Unemployed individuals had lower psychological and physical well-being than did their employed counterparts.” — “Psychological and Physical Well-Being During Unemployment: A Meta-Analytic Study.” Journal of Applied Psychology, Jan. 2005.

“SPRC conducted a literature review of relevant research published in the past two decades. The review shows that a strong relationship exists between unemployment, the economy, and suicide. A common “chain of adversity” can begin with job loss and move toward depression through financial strain and loss of personal control. In fact, this chain leads to myriad financial, social, health and mental health outcomes—all of them negative. The most common (but by no means the only) mental health outcome is depression, which significantly increases suicide risk. The associated financial outcomes (such as mortgage foreclosures and loss of retirement security) have not been researched with respect to suicide. However, the potential link is that for vulnerable individuals, losses (whether real or anticipated) that result in humiliation, shame, or despair can trigger suicide attempts.” — “Relationship between the Economy, Unemployment and Suicide.” Suicide Prevention Resource Center (SPRC), November 2008.

“There was a strong independent association between suicide and individuals who were unemployed (odds ratio 2.6; 95% confidence interval 2.0 to 3.4) and permanently sick (2.5; 1.6 to 4.0)…. The association between suicide and unemployment is more important than the association with other socioeconomic measures.” — “Suicide, deprivation, and unemployment: record linkage study.” British Medical Journal, Nov. 1998.

“Socioeconomic events are known to produce important fluctuations in suicide mortality. Unemployment, in particular, seems related to suicide risk along direct and indirect pathways. Blakely and co- workers’ paper in this issue adds to evidence indicating a causal association between unemployment and suicide. Their results indicate that this association is not attributable to confounding factors linked to the socioeconomic status and that it is only partly related to health selection or mental disorders.” — “Unemployment and Suicide.” Journal of Epidemiological Community Health, 2003.

Anemic Jobs Help from Washington Assures More Suffering

According to news reports, President Barack Obama has announced that he will be proposing in September a “jobs package” meant to stimulate job growth. The program, which reportedly will include yet more tax cuts, along with some infrastructure spending, appears yet another tepid approach to a problem that is seriously affecting millions of people. In fact, the government has sat and twiddled its thumbs while millions have languished in despair.

Unemployment is deadly. The effects of the capitalist boom-and-bust system seriously damage millions of lives. But with an almost daily bombast of propaganda about terrorism, the populace lives in fear, while wondering how they will make their bills, ground down between anxiety over ghostly terrorists and eviction, or how to put gas in their car, or afford a bus pass. Hopelessness stalks the land, not Al Qaeda. And yet the politicians in D.C. care little or nothing about the suffering their policies cause. Indeed, their pockets are lined with campaign donations from corporations that routinely layoff hundreds of thousands, and ship many thousands more jobs overseas.

Callous disregard for human lives is what links the terrible policies of war and torture with the policies of neglect and indifference towards the jobless. Such callousness is the by-product of a get-rich-quick ethos that worships profit over all else, over worship of a capitalist system that has brought about terrible world wars, massive depressions, colonial atrocities, and even genocide. U.S. society awaits its turn through the meat-grinder of history.

Meanwhile, the politicians only care about getting re-elected. Indeed, the blogosphere is too infected with following the minutiae of the fake political campaigns, while daily, minute by minute, people’s lives are destroyed. Somewhere today, perhaps while you were reading this, someone has taken their life because they felt useless, with no hope of gainful employment, their self-esteem ground down, the sense of meaning and connection severed by redundancy and societal disconnection.

We need dramatic, radical change in this country, and we need it now. For many thousands, however, it will come too late. How many more individual lives, how many more families lives will be shattered by mental illness and suicide due to joblessness? The right to a job is the most fundamental of human rights.

Originally published on Firedoglake.

Jeffrey Kaye, a psychologist living in Northern California and a regular contributor to Truthout, blogs about civil liberties and issues revolving around the US government’s torture program at The Dissenter. He can be reached at sfpsych at gmail dot com. Follow Jeff on Twitter: @Jeff_Kaye

A billboard questioning the validity of Barack Obama's birth certificate and by extension his eligibility to serve as President of the U.S. The billboard is part of an advertising campaign by the far right-wing website WorldNetDaily. Photo/Wikimedia

The latest garbage spewing hate as it circles the Internet in a viral state of panic continues a three year smear against Barack Obama.

The attacks had begun with the extreme right wing spitting out Obama’s full name—Barack HUSSEIN Obama, as if somehow he wasn’t an American but connected to the Iraqi dictator who, despite the Bush Administration’s best efforts, had no connections to 9/11.

When the right-wingers and Tea Party Pack get tired of their “cutesy” attempts to link Obama to militant Muslims, they launch half-truths and lies to claim he wasn’t born in the United States. Like Jaws, Jason, or Freddy Krueger, “birther” propaganda keeps returning, even when independent state officials and analysts proved the claims false.

The issue simmered on Fox TV and talk radio until Donald Trump, the man with the planet-sized ego and the bacteria-sized brain, inserted his persona into the issue, while pontificating about becoming the next president. The media, exhausted from having to cover the antics of Lindsay Lohan and Charlie Sheen, turned their news columns over to the man who would be God—if only it paid better.

The Wing Nut Cotillion, with Trump getting the headlines, then demanded Obama produce a long-form birth certificate—which he did while leading a combined White House-CIA-Pentagon effort to find and destroy Osama bin Laden. The truth still hasn’t quieted the conspiracy nuts.

Not willing to accept truth and logic, the extreme right wing, grasping for anything they could find, have attacked the raid that killed bin Laden. Among their screeches are that bin Laden isn’t dead . . . that he was killed a week earlier or even years earlier . . . that Obama had hidden the death until there was a more political time to reveal it . . . that it was George W. Bush (who publicly said six months after 9/11 that he didn’t care about bin Laden) who deserves all the credit . . . and that while Navy SEALS should get credit, Obama is too weak to have overseen any part of the mission.

And now from the caves of ignorance and hatred comes a much-forwarded letter, which the anonymous author says “shouldn’t surprise anyone.” Written as fact, the letter informs us Barack Obama: “never held a ‘real’ job, never owned a business and as far as we know, never really attended Harvard or Columbia since those transcripts have never been released and no one remembers him from their time at either school.”

The email of hate further “enlightens” us that “Being a community activist only gives someone insite [sic] on how to assist the less fortunate and dregs of society on how to acquire government housing and government benefits without ever contributing one penny in taxes.”

That’s right. The Whackadoodles Wearing Tinfoil Caps crowd has escaped again.

Among those community activists who worked with the “dregs of society,” apparently on ways to scam the government, are St. Francis of Assisi (1181–1226), founder of the Franciscan order and patron saint of animals and the environment; Jacob Riis (1849–1914), a journalist and photographer who exposed the squalor of slums and tenement buildings; Dorothy Day (1897–1980), a journalist who founded the Catholic Worker Movement that advocated nonviolent action to help the poor and homeless, and who the archdiocese of New York, at the direction of Pope John Paul II, began a process leading to beatification; and Jane Addams (1860–1935), who fought for better conditions for children and mothers, was active in the progressive campaigns of Teddy Roosevelt and who, like Roosevelt, earned a Nobel Peace Prize. Those who rail against community activists for not having “real” jobs would also oppose Saul Alinsky (1909–1972), who tirelessly established the nation’s most effective organizational structure to help the poor and disenfranchised to gain a voice against political, economic, and social oppression; Dr. Benjamin Spock (1903–1998), America’s foremost pediatrician, for leading antiwar campaigns; Cesar Chavez (1927–1993), who helped get farm workers respectable pay and decent working conditions; Martin Luther King Jr. (1929–1968) who, with hundreds of thousands of others, forced a nation to finally confront its racism; and innumerable leaders of the feminist and gay rights communities who got America to confront their other prejudices. All were community activists.

Not dregs because they have “real” jobs are the bankers and Wall Street investors who brought about the housing crisis that led to the worst depression in the past seven decades. Also exempt from contempt are the business owners who downsized, right-sized, and shipped their production overseas, throwing millions of Americans out of work.

Barack Obama, castigated for not having a “real job,” worked more than a year as research associate and editor at the Business International Corp., three years as director of Developing Community Projects, a church-based group for eight Catholic parishes, and summer jobs at law firms. Other “not real” jobs include being an author, civil rights lawyer, and a professor of Constitutional law at one of the nation’s more prestigious colleges. Frankly, it’s rather nice to have a president who actually understands the Constitution—as opposed to the rabble who misquote, misstate, and misappropriate it all the time.

Those propagating the email of hate believe Obama couldn’t earn degrees from Ivy League colleges; the subtext is as clear as their refusal to believe in an integrated nation. So, I contacted the registrars at Columbia and Harvard. In less than 10 minutes, the registrar at Columbia confirmed that Barack Obama received a B.A. in political science, and the registrar at Harvard Law School confirmed Obama received a J.D. These are public records. Anyone can ask the same questions, and get the same answer. Logic alone should have shot down these accusations. Obama was editor of the Harvard Law Review, something as easy to verify as his graduation, and he passed the Illinois bar exam—which requires graduation from college and law school, and a personal character test—also a matter of public record.

Even if Obama provided official transcripts, which are confidential, the wing nuts of society will claim that, like the birth certificate and the death of bin Laden, the transcripts were faked.

The truth is that the politics of hate, combined with media complicity and Internet access, has led not to a discussion of issues but to character assassination, with racism and bigotry as its pillars.

Walter Brasch’s latest book is Before the First Snow, literary historical fiction that explores the counterculture between 1964 and 1991. The book, to be published June 20, is available at Amazon.com. Click here to preview the book trailer.

In effect, Judge Eloy Velasco sent the case back to the U.S. at the request of the Department of Justice, who argued in their March 1, 2011 letter to the judge that the U.S. is plenty interested in investigating and prosecuting torture and other war crimes. Besides the cases of CIA contractors David Passaro and Don Ayala (Marcy Wheeler discusses the Passaro case here), assorted Defense Department prosecutions of “bad apple” abusers, and the lingering Durham investigation, the U.S. representation cannot dredge up any significant criminal investigations — except one (if it is one).

The letter rogatory to the Spanish court refers to “pending federal investigations by the United States Attorneys’ Office for the Eastern District of Virginia” on “various allegations of abuse of detainees.” (p. 3-4 of letter) In addition the letter refers to “pending status and legal restrictions on the disclosure of investigative information, including rules of grand jury secrecy”. Since there has been no previous reports on current grand jury proceedings in the Eastern District on detainee abuse that I know of, is this a reference to the former cases since sent from the Eastern District by Attorney General Holder in 2009 for review by special prosecutor John Durham? Or is this something new? Have some of the cases under preliminary review by Mr. Durham now reached full investigation status?

DoJ Keeps Mum on Virginia “Pending” Investigation

In response to such questions, Dean Boyd, spokesman for the National Security Division at the Department of Justice replied to me today, “There is nothing further I can provide to you on this matter beyond what is in the document.”

Since the U.S. representation to the Spanish court was meant to convince the judge that the U.S. was serious about seeking investigations and prosecutions regarding torture, it is important to know whether a new stage in the otherwise dilatory investigations by the Obama administration, who famously has announced it would rather look forward and not backwards when it comes to investigating torture, has been hereby announced, or whether this was a con job by DoJ, describing the Eastern District grand jury as somehow still in play, when in reality, its actions on detainee abuse are non-existent, waiting for some determination of the review by Durham and his office.

Durham’s review has also been going on for over a year and a half now. But it was last June when, according to an article at Main Justice, Attorney General Holder said in remarks at the University of the District of Columbia Law School, that Durham was near the end of his preliminary review, and ”close to the end of the time that he needs and will be making some recommendations to me.” Did those recommendations include a referral back to the Eastern District for investigation and prosecution of those cases? According to the article, “several Justice officials cautioned that although Durham is nearing completion, it may take weeks or months to absorb his findings and decide what steps, if any, to pursue next.”

In a rebuttal letter to the U.S. response, the Center for Constitutional Rights (CCR), which has been championing the Spanish prosecution, appears to believe the entire episode as written up in the recent March 1 letter is a smokescreen for a whole lot of nothing. CCR wrote, “The U.S. Submission tries to hide behind the secrecy aspects of the grand jury proceedings to suggest that this investigation is a robust investigation into detainee abuse. It is notable, however, that the United States government has not spoken of any investigation in Virginia when discussing US investigations into US torture…” (PDF).

It must be galling to those looking to the Spanish court, and the hard workers at CCR especially, to see Judge Velasco so quickly take U.S. guarantees of sincerity as good coin. The U.S. had told the court, “The United States will continue to address allegations of abuse by its personnel, at home and abroad, and therefore believes it is appropriate for the Spanish courts to refer complaints related to such matters to the United States for appropriate review and action.”

CCR responded, noting the Obama administration policy of impunity for torture among mid-level and high-ranking government figures:

Through its actions and inactions, the U.S. clearly has demonstrated its unwillingness to exercise its jurisdiction to investigate and prosecute the named defendants for serious violations of international law. To refer this investigation from Spain to the United States would be to knowingly transfer this case to be closed.

Those following the torture scandal will find high irony in the U.S. claims that the DoJ Office of Public Responsiblity (OPR) and Senate Armed Services Committee (SASC) investigations, into DoJ Office of Legal Counsel malfeasance on the torture memos and on the origins and spread of the DoD torture program, respectively, are somehow indicative of U.S. good faith on investigations. The OPR report found government attorneys John Yoo and Jay Bybee to be guilty of “professional misconduct,” only to have DoJ Associate Deputy Attorney General David Margolis downgrade the OPR decision. The SASC investigation found the torture at Abu Ghraib, Guantanamo and elsewhere to be the responsibility not of “bad apples” in the military, but of high officials who promoted a program of torture and detention abuse.

It seems unlikely that the Durham investigation is actually going to bear any fruit, or that a grand jury investigation on detainee abuse is actually underway in Virginia. Sooner or later, we will know the truth. But whatever it is, the actions and policy of the Obama administration won’t fundamentally change, as high officials, such as those identified in the Spanish case — David Addington, Jay S. Bybee, Douglas Feith, Alberto R. Gonzales, William J. Haynes, and John Yoo — are not in any danger of prosecution. The U.S. has made that clear numerous times, and most lately in the response to the Spanish judge.

Update, Thursday morning, 7:25 PDT,: Center for Constitutional Rights released a statement today regarding Velasco’s dismissal of “this politically charged case,” noting that the U.S. made it clear in it’s statement that “the Department of Justice has concluded that it is not appropriate to bring criminal cases with respect to any other executive branch officials, including those named in the complaint, who acted in reliance on [Office of Legal Counsel] memoranda during the course of their involvement with the policies and procedures for detention and interrogation.”

“This decision is a cowardly political act by a judge afraid to pursue justice under his country’s own laws. He is hiding behind the fig leaf of the U.S.’s scant seven-page response, but the submission made clear the U.S. has no intention of investigating these crimes or holding higher-level officials accountable for torture. As we saw from the WikiLeaks cables, the U.S. has been pressuring Spain to drop the case and interfering with the independence of judges. A second U.S. torture case remains open in Spain after a higher court ruled it should continue on February 25. Judge Velasco asked for opposing views but then issued his decision without even looking at our detailed submission refuting the U.S. claims. We will fight this decision and continue to demand accountability for torture.”

Photo/Wikimedia

Last Monday, on the very same day that the Obama administration gave up on Guantánamo, so too did the Supreme Court. As far as we know, it was not a choreographed climbdown — nor had money been offered by George W. Bush and Dick Cheney to rehabilitate their legacies — but the effect was the same.

For opponents of the unconstitutional aberration that is Guantánamo, last Monday — April 4, 2011 — will go down in the history books as the day that they were obliged to watch impotently as federal court trials for terrorist suspects were discarded or discredited, the tired and tawdry looking “War on Terror” was revitalized, and the Supreme Court, through its inaction, decided that judges in the D.C. Circuit Court — who have publicly criticized the Supreme Court for incompetence — should continue to decide detainee policy at Guantánamo.

What this means, as I will spell out in detail below, is that, having gutted habeas corpus of all meaning in rulings over the last 15 months, the D.C. Circuit Court will be allowed to continue deciding that every prisoner still held at Guantánamo should — and very possibly will — be held forever, regardless of whether they were cleared for release by other judges, or by the President’s own interagency Guantánamo Review Task Force.

In last Monday’s first capitulation, the Obama administration — via Attorney General Eric Holder — abandoned a 16-month promise to try alleged 9/11 mastermind Khalid Sheikh Mohammed and four others in federal court, capitulating to Republican pressure — and a ban on moving prisoners to the US mainland to face trials, which was unconstitutionally implemented by Congress in December — by announcing that the men would, instead, be tried by Military Commission at Guantánamo.

The administration therefore fulfilled a key Republican aim — ensuring that the highest-profile prisoners in Bush’s “War on Terror” would be regarded as “warriors” rather than as criminals — and, in effect, turned the clock back to 2008, when the Bush administration held three pre-trial hearings in the Military Commissions of these five men.

Admittedly, the Obama administration bears the ultimate responsibility, having revived the Military Commissions in the summer of 2009, when senior officials could have consigned the reviled system to the grave of failed legal novelties. In addition, it may all backfire, as the Commissions are built on dubious legal sands, and the proceedings tend to be full of holes through which determined defendants like Khalid Sheikh Mohammed will be able to mock America more successfully than in federal court. However, the end result is that Republicans — and, should they wish, George W. Bush and Dick Cheney — will be able to claim that they were right all along.

On the judicial front, the Supreme Court has ducked Guantánamo since its last major intervention, in Boumediene v. Bush, in June 2008, when the justices ruled that the prisoners had constitutionally guaranteed habeas corpus rights, and also ruled that Congress had acted unconstitutionally by attempting to strip the prisoners of those rights in the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006.

Although this was an enormously important decision, reinforcing the unusual but crucial ruling in June 2004, in Rasul v. Bush, that the prisoners, though seized in wartime, had habeas rights because the Bush administration had cut off all mechanisms whereby innocent men seized by mistake could prove their innocence, it also sowed the seeds of last Monday’s disaster.

Essentially, the Supreme Court refused to provide a description of an “enemy combatant,” leaving it to the lower courts to decide that, and although the District Court in Washington D.C. did a fine job of coming up with its own definition, and applying it in practice — and tweaking it along the way — in 41 cases from October 2008 to December 2009, for the last 15 months judges in the D.C. Circuit Court (the court of appeals) have fought back, with a number of notoriously right-wing judges refusing to accept the District Court’s generally accepted decision that some sort of involvement in the command structure of al-Qaeda and/or the Taliban is necessary to deny their habeas petitions.

Beginning with Al-Bihani v. Obama in January 2010, in which D.C. Circuit Court judges argued for no limit on the President’s wartime powers in the case of a Yemeni cook for Arab forces supporting the Taliban in Afghanistan, other panels have attacked the “command structure” argument, insisting that being “part of” al-Qaeda and/or the Taliban is sufficient to justify ongoing detention for life, and proceeding to attack the already low threshold required of the government — that it demonstrates its case by a “preponderance of the evidence,” rather than “beyond any reasonable doubt.”

What the D.C. Circuit Court desires, as judges have occasionally spelled out, is for the burden to be nothing more than “some evidence” — and that in a very open-ended way, as I explained in my last broadside directed at the Circuit Court. If they could, one suspects that the Circuit Court judges would simply return to the Combatant Status Review Tribunals at Guantánamo, held in 2004-05, which the Supreme Court in Boumediene found “insufficient.” In the CSRTs, the burden of proof was not on the government, but, outrageously, on the defendant, even through the prisoners in Guantánamo had no way of securing any evidence in their favor, or even of knowing what the government’s supposed case was against them.

In an attempt to overturn the Circuit Court’s dominance of all the arguments regarding the Guantánamo prisoners, a number of submissions have been made to the Supreme Court in recent months, and although these have all been turned down, as I mentioned above, it is worth analyzing what has been happening, in order to understand more thoroughly the dark forces that are now in control.

In an excellent editorial last month, the New York Times addressed the problem with the D.C. Circuit Court, focusing specifically on the court’s opposition to  attempts by the Uighurs — Muslims from China’s oppressed Xinjiang province, seized by mistake, who won their habeas petition in October 2008 — to be allowed to live in the US.

Although the judge in their case, Judge Ricardo Urbina, ordered that they be brought to live in the US in October 2008, the Bush administration — and then the Obama administration — appealed, and in February 2009, long before the Circuit Court specifically began meddling in reversing successful habeas opinions, or unilaterally calling for an expansion of executive power — the Circuit Court agreed. Under Judge A. Raymond Randolph — notorious for endorsing every opinion about Guantánamo under President Bush that was subsequently overturned by the Supreme Court — a panel of judges ruled, as the Times described it, that Judge Urbina “lacked authority to free them in the United States because the ‘political branches’ have ‘exclusive power’ to decide which non-Americans can enter this country.”

Since then, although 12 of the 17 Uighurs have accepted new homes (in Bermuda, Palau and Switzerland), the Court has continued to resist claims made by the other five, who turned down offers to rehouse them made by Palau and at least one other unidentified country, because they did not trust those countries to protect them from the Chinese government.

Appalled by this decision, and by all the other developments in the last 15 months, the Times boldly pointed out that the D.C. Circuit Court “has dramatically restricted the Boumediene ruling,” and that, “In its hands, habeas is no longer a remedy for the problem the Boumediene majority called ‘arbitrary and unlawful restraint.’”

The editors proceeded to note that, in the Uighurs’ brief to the Supreme Court, challenging this decision (as the latest instalment of a case that has bounced around the courts for the last two years), their lawyers point out explicitly that the only constant factor in this case is “the court of appeals’ refusal to apply, or even acknowledge” the Boumediene ruling, and the editors also provided an eye-opening glimpse into the partisan nature of Judge Randolph’s opposition to the decisions regarding Guantánamo that have come before him, explaining:

Judge Randolph … wrote the opinion for the District of Columbia Circuit that the Supreme Court overturned in Boumediene. In a speech called “The Guantánamo Mess” last fall, he said that the justices were wrong to do so and all but expressed contempt for the holding. As the basis for the speech’s title, he compared the justices who reached it to characters in The Great Gatsby. “They were careless people,” he read. “They smashed things up … and let other people clean up the mess they had made.”

This contemptuous approach to the Supreme Court’s ruling prompted the New York Times to respond:

In Kiyemba [the Uighurs' case] and related cases, however, it is Judge Randolph and others on the District of Columbia Circuit who are making the mess. Respected lawyers say they are subverting the Supreme Court and American justice. Of 140 challenging their detentions in the face of this hostility, dozens who should have been freed will likely remain in prison.

In conclusion, the Times sought to remind the Supreme Court that “Alexander Hamilton called ‘arbitrary imprisonments’ by the executive ‘the favorite and most formidable instruments of tyranny,’” and that, in Boumediene, Justice Anthony Kennedy “stressed that habeas is less about detainees’ rights, important as they are, than about the vital judicial power to check undue use of executive power,” adding that this is important because the Circuit Court “has all but nullified that view of judicial power and responsibility backed by Justice Kennedy and the court majority,” and that the Supreme Court should now remind the Circuit Court “which one leads the federal judicial system and which has a solemn duty to follow.”

If the Times‘ editors made a valid case — and I believe they did — then it was the Supreme Court who failed to take their responsibilities on board, because last Monday they refused to consider the Uighurs’ case, and also turned down three other habeas-related submissions — challenging the government’s use of hearsay, the “preponderance of evidence” standard, and the sweeping executive powers endorsed in Al-Bihani.

To date, analysts have suggested that the Supreme Court might have been unwilling to revisit Guantánamo, because Elena Kagan, who replaced Justice John Paul Stevens, served as Obama’s Solicitor General working on Guantánamo issues, and would have had to recuse herself, leaving the court, in all likelihood, split 4-4 on any Guantánamo cases. However, as SCOTUSblog noted, Kagan did not recuse herself from two of the cases turned down last Monday, suggesting that the problem is actually that no one amongst the justices wants to step into the role taken by Justice Stevens, who, from 2004 to 2008, “had been the Court’s leader in asserting a strong role for the Justices in overseeing how the law of detention had developed.”

Along with the Obama administration’s capitulation to Republican demands on Guantánamo, the fact that the Supreme Court, under Obama, has also ended up more right-wing than it was under Bush, when it comes to detention issues in the “War on Terror,” appears to be some sort of cruel joke.

How on earth have we ended up in a situation whereby, as SCOTUSblog explained, the poisonous figure of Judge Randolph has been left in a position in which the Supreme Court’s denial of review last Monday “might … count as a personal triumph” for him — and, thereby, a tacit admission that he was correct to regard Boumediene as a “mess” that requires cleaning up? Was Justice Stevens the only reason that the US justice system did not thoroughly endorse arbitrary detention as official policy under George W. Bush?

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

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

(Image: Lance Page / t r u t h o u t; Adapted: sunilgarg, kzappaster, ~Brenda-Starr~)

Since May 2009, when President Obama first bowed to Republican pressure on national security issues, and abandoned a plan by White House Counsel Greg Craig to rehouse on the US mainland a couple of cleared prisoners at Guantánamo who were at risk of torture if repatriated, it has been apparent that no principles are sufficiently important to the administration that officials won’t jettison them the moment that critics start howling.

After this first success with the cleared prisoners — blocking entry to the US for the Uighurs, Muslims from China’s Xinjiang province, who had been cleared for release by a US court — Republicans, and, to a lesser extent, dissenters within Obama’s own party, realized that the power to shape national security issues was in their hands, particularly when the magic word “Guantánamo” was invoked.

As a result, when a young Nigerian, apparently recruited in Yemen, tried to blow up a Detroit-bound plane on Christmas Day 2009, and the critics howled that no Yemenis in Guantánamo should be released, the President didn’t point out that this was unacceptable, and was, moreover, a call for him to endorse a policy of “guilt by nationality.” Instead, he immediately capitulated, imposing a moratorium on the release of Yemenis from Guantánamo that still stands 15 months later, and that, single-handedly, undermined the President’s own promise to close the prison.

A similar success for Obama’s critics took place after Attorney General Eric Holder announced on November 13, 2009 that

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

Khalid Sheikh Mohammed and four other men accused of involvement in the 9/11 attacks would face a federal court trial in New York, on the same day that he announced that five other men would face trials by Military Commission at Guantánamo.

Although this announcement went down well initially, with most of the complaints coming from critics of the Commissions —myself included — who were dismayed that Obama and Holder had brought the much-criticized military trial system back from the dead, a cynical backlash soon started against the proposed federal court trial for the alleged 9/11 co-conspirators. This was orchestrated by Keep America Safe, an organization founded by 9/11 widow Debra Burlingame, rightwing pundit William

Krystol, and Liz Cheney, the daughter of former Vice President Dick Cheney, which might, more appropriately, have been called

“Keep America Afraid.” However, it succeeded in its mission, because, predictably by now, when the critics’ complaints were loud enough, Obama again backed down, effectively shelving the plans, and leaving Holder looking foolish.

Nevertheless, the Attorney General at least maintained some principles. Aware of the significance of the trial of Khalid Sheikh Mohammed and his alleged co-conspirators, Holder told Jane Mayer of the New Yorker last February that he was “determined not to capitulate on the idea of holding a 9/11 trial.” Mayer’s report continued:

“I don’t apologize for what I’ve done,” he told me at one point. “History will show that the decisions we’ve made

are the right ones.” Holder said that he regarded trying Khalid Sheikh Mohammed in a courtroom as “the defining event of my time as Attorney General.” But, he added, “between now and then I suspect we’re in for some interesting times.”

Those “interesting times” have seen Holder’s boss make no effort to fight back against his critics, so that, by the end of last year

, supporters of Guantánamo in Congress were so emboldened, and so certain that Obama would do nothing to oppose them, that

they inserted provisions into an important military spending bill explicitly prohibiting the administration from bringing Guantánamo prisoners to the US mainland to face a trial — specifically mentioning Khalid Sheikh Mohammed by name, in case anyone missed the point.

When the bill was passed, Obama could have vetoed it and fought to remove the offending provision, or he could, more contentiously, have issued a signing statement refusing to accept it, but predictably he did neither, meaning that Khalid Sheikh Mohammed and his co-accused would either remain in Guantánamo without facing a trial at all, or that the President would

accept that he had been bullied into putting them forward for trial by Military Commission.

Announcing the bullying option on Monday, Eric Holder did not even bother to disguise his disappointment. He began by

explaining that, when he had examined the best option for the trial in 2009, he had done so with an open mind, and had concluded that “the best venue for prosecution was in federal court.” He added, pointedly, “I stand by that decision today,” and then provided a compelling defense of the federal court decision:

[W]e were prepared to bring a powerful case against Khalid Sheikh Mohammed and his four co-conspirators — one of the most well-researched and documented cases I have ever seen in my decades of experience as a prosecutor. We had carefully evaluated the evidence and concluded that we could prove the defendants’ guilt while adhering to the bedrock traditions and values of our laws. We had consulted extensively with the intelligence community and developed detailed plans for handling classified evidence. Had this case proceeded in Manhattan or in an alternative venue in the United States, as I seriously explored in the past year, I am confident that our justice system would have performed with the same distinction that has been its hallmark for over two hundred years.

Holder then proceeded to condemn Congress for interfering in the decision for political reasons, generously citing the President’s complaint that these “unwise and unwarranted restrictions undermine our counterterrorism efforts and could harm our national security,” but primarily expressing his own dismay far more eloquently, and inadvertently revealing how, in contrast, nothing that relates to Guantánamo is of particular importance to Obama, who has not spoken with conviction on the topic since becoming President:

Decisions about who, where and how to prosecute have always been — and must remain — the responsibility of the executive branch. Members of Congress simply do not have access to the evidence and other information necessary to make prosecution judgments. Yet they have taken one of the nation’s most tested counterterrorism tools off the table and tied our hands in a way that could have serious ramifications.

Although Holder proceeded to express faith in the Commissions as a system capable of delivering justice, his preference for federal courts was apparent, as he launched into a passionate defense of federal court trials, which was prompted by “a number of unfair, and often unfounded, criticisms.” This was probably a reference to the way in which Republican critics tried to make political capital out of the federal court trial of Ahmed Khalfan Ghailani, the only Guantánamo prisoner brought to the US mainland (in May 2009), whose recent conviction and life sentence was portrayed by critics as a failure, because the judge barred the use of evidence derived through the use of torture (as he is required to do by law), and because the jury threw out all but one of the 285 counts against Ghailani.

In his defense of the federal court system, Holder wrote:

[F]ederal courts have proven to be an unparalleled instrument for bringing terrorists to justice. Our courts have convicted hundreds of terrorists since September 11, and our prisons safely and securely hold hundreds today, many of them serving long sentences. There is no other tool that has demonstrated the ability to both incapacitate terrorists and collect intelligence from them over such a diverse range of circumstances as our traditional justice system.

In conclusion, Holder lamented that the 9/11 case “has been marked by needless controversy since the beginning.” As he proceeded to explain, “the prosecution of Khalid Sheikh Mohammed and his co-conspirators should never have been about settling ideological arguments or scoring political points,” but should “always [have] been about delivering justice for [the] victims of [9/11], and for their surviving loved ones. Nothing else.”

This is another poor day for justice, in an administration that has been marked by an absence of good news when it comes to dealing appropriately with national security issues. Eric Holder deserves only faint praise overall, because of the way in which he was evidently involved in sheltering Bush administration lawyers from prosecution for their involvement in the “torture memos” of August 2002, and for his failure to oversee the Guantánamo habeas legislation, which has proceeded as aggressively as if Bush was still in power. On the 9/11 trial, however, and through his obvious exasperation with a political climate in which terrorism — when related to Guantánamo — is shamelessly played by political opportunists or seized upon by rightwing ideologues who have whipped themselves up into an unseemly frenzy of hysteria and paranoia, Holder at least continues to express a belief in certain principles, however rmuch he has been obliged to ignore them.

Elsewhere in the administration, and particularly in the actions of Barack Obama, who has consistently failed to provide leadership when it is needed, there has not even been a glimmer of recognition that certain principles have been lost, and that, it seems to me, ought to be a cause for great concern as the cheerleaders for Guantánamo — and for the false thesis that terrorists are warriors who must be tried in war crimes trials — score another victory at Obama’s expense.

Originally published on the website of the Future for 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.

Treated as punchbags without rights when first picked up, mostly in Afghanistan and Pakistan in the wake of the 9/11 attacks and the US-led invasion of Afghanistan, the 172 men still held at Guantánamo are still treated with scorn by the administration of Barack Obama, the standard bearer of “hope” and “change,” who promised to close Guantánamo and to do away with “the dark halls of Abu Ghraib and the detention cells of Guantánamo, [where] we have compromised our most precious values.” Instead, however, Obama has revealed himself to be nothing more than a hollow man whose ability to read from an autocue made him look caring, clever and capable when that was exactly the antidote we needed to eight years of Bush and Cheney.

Today, the reason for despair is that on Tuesday the D.C. Circuit Court reversed a ruling made last February by Judge Henry H. Kennedy Jr. of the District Court, in the case of Uthman Abdul Rahim Mohammed Uthman, a Yemeni held at Guantánamo without charge or trial since the prison opened in January 2002. Last February, after examining all the government’s supposed evidence against Uthman, Judge Kennedy ruled that, although the government had presented what appeared to be a coherent timeline of events that was typical for young men from the Gulf, recruited to visit a training camp in Afghanistan to learn to fight for the Taliban against the Northern Alliance, none of the government’s supposed evidence proving Uthman’s presence in guest houses, at a training camp, and in the Tora Bora mountains (where a showdown took place in December 2001 between remnants of al-Qaeda and the Taliban, and Afghan forces recruited to fight for the Americans) was reliable.

The reason for this, Judge Kennedy concluded, was because the government’s supposed evidence consisted of statements produced by other prisoners who had been tortured, and whose testimony was therefore unreliable, as well as other witnesses whose statements were also considered to be untrustworthy.

This could have been the end of the story, and Uthman could have been released, were it not for the fact that he is a Yemeni, and the month before he won his petition, President Obama bowed to hysteria following the announcement that Umar Farouk Abdulmutallab, the failed Christmas Day plane bomber, had been recruited in Yemen by announcing an immediate, open-ended moratorium on releasing any Yemenis from Guantánamo.

The fact that this moratorium was unjustifiable, consigning prisoners cleared for release by a US court, or by Obama’s own interagency Guantánamo Review Task Force, to indefinite detention on the basis of “guilt by nationality,” appeared to trouble no one, and, similarly, no one blinked when every Yemeni who won his habeas corpus petition — with one heroic exception — subsequently had his successful petition appealed.

This was in spite of the fact that it was obvious to anyone who was reasonably sentient that the main reason for doing so was to avoid having to try to persuade Congress that an exception should be made to the moratorium, which, very clearly, was actually intended to function as a permanent obstacle to the release of any Yemeni, the kind of legally and morally dubious device that President Bush also favored, although his chosen vehicle was the executive order.

The noble exception, by the way, was Mohammed Hassan Odaini, a student who had been seized while staying the night wth other students at their universtiy dorm in Faisalabad, Pakistan, in March 2002. Many of the other students staying in the dorm are still held, but Odaini was lucky because a judge reached the point where he was satisfied that he could make a ruling on his habeas petition, and forcefully explained that the US government had no reason for having deprived Odaini of eight years of his life, when intelligence officials knew, almost from the moment of his capture, that he was an innocent man.

It also helped that his case was picked up by the Washington Post, which ran an editorial entitled, Meet one Gitmo inmate who can’t be described as ‘the worst of the worst.’ At this point, he became a kind of minor celebrity victim, and the administration conceded that it wouldn’t dare appeal, although officials still made a concession to outrageousness by explaining, straight-faced, that they still would have challenged his release if they hadn’t discovered that he was from a good family. “People [in the administration] were comfortable with this,” an anonymous official told the Washington Post, “because of the guy’s background, his family and where he comes from in Yemen.”

For Uthman Abdul Rahim Mohammed Uthman — not as well-connected as Mohammed Hassan Odaini — all that awaited him was a date with the D.C. Circuit Court that was bound to result in Judge Kennedy’s ruling being reversed, and Uthman himself being consigned to indefinite detention at Guantánamo for the rest of his life.

The reason I state this with such confidence is that, since they first began considering Guantánamo habeas appeals last January, the judges of the D.C. Circuit Court — and, in particular, Judges A. Raymond Randolph, Brett M. Kavanaugh and Janice Rogers Brown — have generally functioned as though possessed by the spirit of George W. Bush and Dick Cheney, sedating the spirit of justice and taking revenge on the Supreme Court, which granted constitutionally guaranteed habeas corpus rights to the Guantánamo prisoners in June 2008.

Of these, Judge Randolph is the most notorious, having endorsed every piece of Guantánamo legislation that came his way under the Bush administration, even though all his rulings were subsequently reveresed by the Supreme Court, but all of them (plus others, in various combinations) have almost entirely guaranteed success for the government’s appeals in the habeas legislation, as I explained in my articles, Guantánamo and Habeas Corpus: Prisoners Win 3 out of 4 Cases, But Lose 5 out of 6 in Court of Appeals (Part One), Guantánamo and Habeas Corpus: Prisoners Win 3 out of 4 Cases, But Lose 5 out of 6 in Court of Appeals (Part Two) and Habeas Hell: How the Great Writ Was Gutted at Guantánamo.

In challenging, reversing and vacating the District Court opinions, the D.C.Circuit Court has issued a contentious opinion about unfettered executive power, which claimed greater wartime powers for the government than senior officials wanted, wondered — in an opinion by Judge Randolph — why any kind of test was required for the quality of the government’s evidence in cases related to terrorism, and, most damagingly for the prisoners, decided that the involvement with al-Qaeda and/or the Taliban that is required to justify detention is not, as the District Court judges decided, limited to some sort of involvement in the command structure of the organizations (intended to demonstrate important indicators like the requirement to take orders), but is, instead, the much more open-ended requirement that those under consideration are “part of” al-Qaeda and/or the Taliban.

On Tuesday, demonstrating quite how open-ended this description is, Judge Kavanaugh, who wrote the judges’ opinion, declared, as ProPublica stated, “that the government doesn’t need direct evidence that a detainee fought for or was a member of al-Qaeda in order to justify a detention.” ProPublica added that the court “determined that circumstantial evidence, such as a detainee being in the same location as other al-Qaeda members, is enough to meet the standard to hold a prisoner without charge.”

In the ruling (PDF), the judges wrote, “Uthman’s account piles coincidence upon coincidence upon coincidence … it remains possible that Uthman was innocently going about his business and just happened to show up in a variety of extraordinary places — a kind of Forrest Gump in the war against al-Qaeda. But Uthman’s account at best strains credulity, and the far more likely explanation for the plethora of damning circumstantial evidence is that he was part of al-Qaeda.”

Jonathan Hafetz, a professor at Seton Hall Law School, who has represented several Guantánamo prisoners including Mohamedou Ould Salahi, who, last November, had his successful petition vacated and sent back to the District Court to reconsider, complained that the Circuit Court’s ruling “significantly favors the government in ways the Supreme Court did not intend when it granted detainees the right to challenge detentions.”

“The Uthman case cements the trend in the D.C. Circuit’s decisions toward a broad and malleable definition of who can be considered ‘part of’ al-Qaeda, combined with a highly deferential view of the government’s interpretation of the facts,” Hafetz said. “In many cases, the result is indefinite detention based on suspicion or assumptions about a detainee’s behavior.”

He added that the ruling is not only dismissive of the considered approach taken by the District Court, but is also dismissive of the intent of the Supreme Court. The Supreme Court, he said, “mandated a meaningful judicial process in which the government would be called to account; Uthman says judges should not require much in the way of an answer.”

The other problem for Uthman, and for the majoriity of the other prisoners who have lost their habeas petitions (22 out of 59 cases in total), is that all this legal maneuvering fails to address a fundamental problem with the habeas petitions that no one has ever wanted to deal with — the fact that the habeas petitions are specifically to decide whether the government is able to demonstrate, by a preponderance of the evidence, that the prisoners in question were involved with al-Qaeda and/or the Taliban, without making any distinction between them, even though one is a terrorist group, and the other was the government of Afghanistan at the time of the 9/11 attacks.

This refusal to distinguish between two decidedly different groups — despite the limited crossover between them, which also extended to a failure to realize that those who trained in camps associated wth al-Qaeda were generally only involved in what might be called al-Qaeda’s military wing, rather than its involvement with international terrorism — is enshrined in the founding document of the “War on Terror,” the Authorization for Use of Military Force. Passed by Congress the week after the 9/11 attacks, the AUMF authorizes the President to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001,” or those who harbored them.

Interpreted by the Supreme Court, in Hamdi v. Rumsfeld, in June 2004, as “clearly and unmistakably” authorizing the detention of individuals, the AUMF therefore provides the rationale for holding prisoners neither as criminal suspects, to be put forward for trials, nor as prisoners of war protected by the Geneva Conventions, but as what Bush called “illegal enemy combatants,” and it crafts the fiction, maintained ever since, that terrorists and soldiers are somehow one and the same, when, if those involved in the habeas legislation were allowed to express an honest and  unguarded opinion about many of the cases, I’m sure that many of them would concede that terrorists are criminals, whereas those involved in the Taliban’s military conflict with the Northern Alliance, which morphed, after 9/11, into a global war against the US, were nothing more than soldiers, and should have been held as such according to the Geneva Conventions.

Time and again, however — and Uthman is just the latest example — these foot soldiers have been losing petitions and being slung back into Guantánamo as though they were convicted terrorists, even when they are no such thing, and, in two cases, were not even foot soldiers but a cook and a medic. Sadly, few people realize that this is what has been happening, as the mainstream media in the US has done little to interest the American public in the prisoners’ habeas corpus petitions.

However, as with my imaginary scenario with the judges, if it were possible to make a cross-section of the American public sit down for a few hours and have spelled out to them the stories of those who have been losing their habeas petitions and who may now spend the rest of their lives in Guantánamo, I’m sure that they too would realize that there’s an enormous difference between someone involved in a plot to kill hundreds or thousands of civilians on the US mainland or anywhere else in the world, and someone who attended a training camp, and may, in some way or another, have engaged in military conflict with the Northern Alliance and/or the US military in Afghanistan.

Nearly ten years after the 9/11 attacks, the time to sort out the difference between terrorists and soldiers is surely long overdue, so that people like Uthman are treated with justice, rather than the lingering effects of the hyperbole that typefied the Bush administration’s “War on Terror.” Moroever, it is also important for America itself to stop pretending that there is a magical third category of prisoner on whose heads can be poured all the pain and loss of 9/11. Prisoners are either criminal suspects, to be put on trial, or soldiers, seized in wartime, to be held as prisoners of war and protected by the Geneva Conventions.

Note: For details of all the habeas cases ruled on in the US courts, see the dedicated page,Guantánamo Habeas Results: The Definitive List, which is regularly updated when new developments are announced.

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.

Ahmed Ghailani

For those of us seeking a grown-up debate about Guantánamo in the two years since President Obama came into office, the most troubling development has been the retrenchment of Republican opposition to the closure of the prison, backed up by alarming support for the pro-Guantánamo position by members of the President’s own party.

Like a dark magic spell capable of banishing all sensible discourse in an instant, the merest mention of the words “Guantánamo” and “terrorism” in the same sentence is sufficient to send lawmakers into paroxyms of hysteria, and nowhere is this more true than when it comes to proposals to put any of the Guantánamo prisoners on trial for their alleged offenses.

Guantánamo’s supporters are so wedded to the Bush administration’s false and damaging nation that, in the “War on Terror,” terrorists are no longer criminals but are “warriors,” that when Attorney General Eric Holder announced in November 2009 that Khalid Sheikh Mohammed and four other men accused of involvement in the 9/11 attacks would face a federal court trial in New York, they raised a cacophonous roar of opposition, bleating that establishing security at the courthouse would be prohibitively expensive, and warning that the trial would lead to a terrorist attack by al-Qaeda.

Last month, emboldened by their success in persuading Obama to shelve the plans for the 9/11 trial, lawmakers followed up by including a provision in a military spending bill prohibiting the transfer of any Guantánamo prisoner to the US mainland for any reason (and explicitly mentioning Khalid Sheikh Mohammed by name), even though it was clearly unconstitutional to do so.

Conveniently ignored by the fearmongers was the rather more mundane reality that, when Ahmed Khalfan Ghailani, a former CIA “ghost prisoner,” and the only Guantánamo detainee to be moved to the US to face a federal court trial before Congress decided to impose unconstitutional demands on the President, was put on trial in New York in October, there was no need for wildly expensive security, and no notion that terrorists would swoop from the skies to attack the courtroom.

Instead, the apologists for Guantánamo immediately changed their approach, blasting Judge Lewis Kaplan for obeying US law and refusing to accept information derived through the use of torture — the name of an allegedly important witness who later testified under dubious circumstances, and whose name was only divulged by Ghailani while he was being tortured in a secret CIA prison.

While this was despicable enough, as it indicated that, so long as the words “Guantánamo” and “terrorism” were uttered together, it ought to be acceptable for a District Court judge to ignore the US anti-torture statute, the critics of federal court trials then proceeded to decry the trial’s conclusion — a guilty verdict on one count of conspiracy in connection with the US embassy bombing in Dar-es-Salaam, Tanzania, in August 1998, along with the dismissal of 284 other charges — even though, as we saw yesterday in the sentence handed down by Judge Kaplan, that single conviction has led to a life sentence without parole.

What is particularly depressing about this topsy-turvy “Alice in Wonderland” world, in which success is portrayed as failure, and no one even blinks in dissent, is that the manufactured hysteria when “Guantánamo” and “terrorism” are mentioned together not only disguises the fact that federal courts have a proven track record of successfully prosecuting terrorism cases (and are, in fact, empowered to deliver punitive sentences on the flimsiest of bases), but also disguises a fundamentally bleak truth about Guantánamo.

The bleak truth is that, in a prison with such a notorious and demonstrable history of torture — particularly in connection with Ghailani, KSM and 12 other “high-value detainees,” as well as dozens of other men tortured in secret CIA prisons, or in proxy facilities in other countries — the presumption ought to be that the government’s assertions about these men are fundamentally unreliable, because torture is unreliable as well as illegal, and should not be taken at face value.

Instead, however, the opposite is true, and Ghaliani, for example, was happily judged to be guilty until proven guilty, by those who will, no doubt, still complain that he received a life senternce on just one count of conspiracy, and not on all of the 285 charges he faced.

With Ghailani’s life sentence, it is time for this cynical nonsense to come to an end. Federal court trials for terrorists work, and opponents should now cease whining, let go of their ideologically misplaced obsession with trying “warriors” in military trials at Guantánamo, and allow the administration to proceed with the federal court trial of Khalid Sheikh Mohammed and his alleged co-conspirators.

Nine years and four months after the 9/11 attacks, the relatives of the victims of that dreadful day deserve justice, and not to be made playthings by cynical lawmakers — and their echo chambers in the right-wing media — who will soon realize that their beloved Military Commissions are fraught with problems, and will, if given the chance, shift their focus so that, in the not too distant future, we will be hearing that some people — like KSM and his co-accused — are so dangerous that they cannot even be put on trial at all.

Originally published on Cageprisoners.

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.