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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

As McDermott added:

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

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

As the ACLU explained:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

As I proceeded to explain:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Referring to the overblown claims about Zubaydah, INTERIGHTS explained:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Detainees sit around the exercise yard in Camp 4, the facility within Camp Delta at Naval Station Guantanamo Bay, Cuba. Photo by U.S. Army Sgt. Sara Wood

This report was originally published on Truthout.

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

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

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

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

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

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

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

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

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

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

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

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

Retreat’s Impact

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

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

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

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

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

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

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

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

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

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

No Formal Allegiance

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

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

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

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

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

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

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

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

Blocking a KSM Interview

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

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

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

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

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

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

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

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

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

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

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

Undermining 9/11 Report

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Mail Review Originally Limited to High-Value Detainees

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Guard, Attorney Singles Out Interrogators

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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