The President began well, freezing the much-criticized Military Commissions trial system on his first day in office, and, on his second day, issuing executive orders requiring Guantánamo to be closed within a year, and upholding the absolute ban on torture that had been so cynically manipulated by the Bush administration.

Almost immediately, however, these bold plans hit a brick wall. The interagency Guantánamo Review Task Force, established in the executive orders, and charged with reviewing all the prisoners’ cases to decide who should be charged and who should be released, discovered, as a senior official explained to the Los Angeles Times in February, that the process would “not be simple,” because information on the prisoners was “scattered in multiple locations,” and “there is not, and may never be, a single file for each detainee.”

This should not have been a surprise. In June 2007, Lt. Col. Stephen Abraham, a veteran of US intelligence, who worked in 2004-05 on the tribunals at Guantánamo — the Combatant Status Review Tribunals — which were responsible for compiling the material that was used to establish that the prisoners were “enemy combatants,” explained, in a submission that eventually made its way to the Supreme Court, that some material consisted of intelligence “of a generalized nature — often outdated, often ‘generic,’ rarely specifically relating to the individual subjects of the CSRTs or to the circumstances related to those individuals’ status,” and that “what purported to be specific statements of fact lacked even the most fundamental earmarks of objectively credible evidence.”

He added that most of the unclassified evidence consisted of “information obtained during interrogations of other detainees” (and was often produced in circumstances that were not conducive to voluntary confessions), and that the classified evidence, which was particularly relied upon by the government, was no more coherent. In July 2007, he told the New York Times that it “was stripped down, watered down, removed of context, incomplete, and missing essential information.” He also reiterated his complaints about evidence obtained from other prisoners, stating, “Many detainees implicated other detainees, and there was often no way to test whether they had provided false information to win favor with interrogators.”

In addition, as the Task Force convened, attorneys for the prisoners were asked to contribute, and although their submissions were not delivered publicly, it is obvious that they would have pointed out that the majority of the prisoners were seized not by the US military, but by their Afghan and Pakistani allies, at a time when bounty payments for al-Qaeda and Taliban suspects were widespread.

They would also have pointed out that the prisoners were not given Article 5 competent tribunals under the Geneva Conventions, which are convened when those seized are not part of a regular army. Held close to the time and place of capture, and championed by the US military in every war since Vietnam, these allow prisoners whose status is in doubt to call witnesses to verify whether they are combatants or civilians. In the first Gulf War, following 1,196 tribunals, 886 men were subsequently released.

In Afghanistan, however, the military was prevented by defense secretary Donald Rumsfeld (on the advice of Vice President Dick Cheney) from holding Article 5 tribunals, with the result that those who ended up in Guantánamo were never adequately screened, a sorry state of affairs that persists to this day in the cases of many, if not most of the 198 prisoners still held.

Confronted with this disarray, the Task Force responded not with robust skepticism of the Bush administration’s claims, but with extreme caution. By September, just 75 prisoners had been cleared for release, even though as many as 36 of these men had previously been cleared for release by Bush-era military review boards, and another 18 had been cleared by the courts, after judges granted their habeas petitions. Moreover, in Obama’s first year in office, just 42 prisoners were released.

The habeas petitions actually represented the best hope for a just outcome at Guantánamo, as the District Court judges, empowered by the Supreme Court to examine the prisoners’ cases, proved adept at perceiving “generalized” and “generic” material masquerading as evidence, and the extent to which “detainees [had] implicated other detainees” (and, it should be noted, themselves), so that, by the end of the year, when the administration announced that 116 prisoners had now been cleared for release by the Task Force, the prisoners had won 32 out of 41 habeas petitions.

Sadly, the judges made their rulings in spite of obstruction from Justice Department lawyers, who behaved as though George W. Bush was still in power, and were severely criticized by a number of the judges. The reasons for this obstruction have never been adequately explained, but it has always seemed to me that senior officials were more interested in their own executive review (involving the Task Force’s slow and careful deliberations) than they were with the District Courts’ objective and authoritative findings.

This was a great shame, of course, because however much senior officials may have intended to clear up the shame of Guantánamo through their own review process, they actually proved overly sensitive to political maneuvering in a manner that did not affect the courts. In April, after bowing to pressure from the White House counsel, Greg Craig (the architect of the executive orders), President Obama accepted a court order to release the notorious memos issued in 2002 and 2005 by lawyers in the Justice Department’s Office of Legal Counsel, which purported to redefine torture, but caved in when critics savaged him for doing so.

Rapidly backpedaling, he refused another court order to release photos of the abuse of prisoners in US custody in Afghanistan and Iraq, and followed up by quashing Craig’s plan to rehouse a number of cleared Guantánamo prisoners on the US mainland, who could not be repatriated because of fears that they would be tortured on their return. These men, the Uighurs, were Muslims from Xinjiang province, whose only enemy was the Chinese government, and their release into the US had been ordered by a judge in October 2008, even though the Court of Appeals, supported by both the Bush administration and the incoming Obama administration, had stayed that ruling later in the month and overturned it in February 2009.

By refusing to act on the Uighurs’ behalf, Obama not only allowed opportunistic lawmakers to exploit his weakness (passing a law preventing any cleared prisoner being rehoused in the US), but also made it difficult for America’s allies in Europe to take any of the dozens of cleared men — from Algeria, Libya, Syria, Tunisia and Uzbekistan, as well as China — when the United States had so blatantly refused to help clear up its own mess.

Spiraling into compromises that betrayed the bold promises with which he had come into office, President Obama followed up by reinstating the Military Commissions (slightly rejigged by Congress), as a second tier of justice to accompany federal court trials for some of the men accused of terrorism, and announcing that he would also hold others indefinitely without charge or trial. This, he said in a major national security speech in May, was because the men in question “cannot be prosecuted for past crimes, in some cases because evidence may be tainted, but who nonetheless pose a threat to the security of the United States.”

By choosing to accept “tainted” material — in other words, information that was obtained through torture — as a basis for signing up to the very policy of “indefinite detention” that had been established by George W. Bush, and that was forever associated with Guantánamo, Obama conceded the moral high ground that he had promised to regain, and, moreover, demonstrated that his justification for not prosecuting senior Bush administration officials for implementing torture was nothing more than a convenient pose.

Even before he took office, Obama explained, in response to calls to appoint a special prosecutor to investigate the Bush administration’s crimes, that “we need to look forward as opposed to looking backwards.” By May, therefore, he appeared to overlook the fact that, by seeking to use the torture of prisoners at Guantánamo as a reason to hold them indefinitely, he was resolutely looking back, but was choosing to side with Bush and Cheney rather than remaining dedicated to the thorough repudiation of their policies.

From then, it was all downhill. Having refused to challenge his critics head-on, Obama narrowly avoided a vote by lawmakers in October preventing any prisoner being moved to the US mainland (even those facing trials), and also met resistance when he sought funds to move prisoners to the Thomson Correctional Center in Illinois.

The final climbdown took place just two weeks ago, when, having finally found the courage to release six cleared Yemenis, Obama faced an onslaught of largely misplaced criticism following claims that Omar Farouk Abdulmutallab, the failed Christmas plane bomber, had connections with an al-Qaeda-inspired group in Yemen.

Ironically, this group apparently contained two Saudi prisoners who had been released from Guantánamo by George W. Bush — against the advice of the intelligence services — but instead of playing on this, Obama caved in again, suspending the release of any more cleared Yemenis for an unspecified amount of time, and casting a dark shadow over the deadline for the closure of Guantánamo this Friday, which will be marked not with international praise, but with fears that this vile blot on America’s reputation will still be open a year from now.

This report was 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.

Mohammed Sulaymon Barre was released from Guantanamo on December 20, 2009, and returned to his family in Somaliland. Mr. Barre had fled Somalia during the civil war in theearly 1990s. The United Nations High Commissioner for Refugees granted Mr. Barre refugee status in Pakistan where he lived and worked freely for many years prior to his detention.

In November 2001, soon after the U.S. invasion of Afghanistan, Pakistani authorities came to Mr. Barres house in the middle of the night and arrested him.

He is believed to have been sold to the United States for bounty at a time when the United States was offering sizable sums for the handover of purported enemies. Once in the custody of U.S. forces, Mr. Barre was sent to the U.S. military base at Bagram, where U.S. guards abused him and coercively interrogated him before transferring him to Guantánamo. He was never charged with any crime.

Earlier Monday, CCR…

…held a public briefing at the National Press Club in Washington, D.C. with activists and human rights attorneys to mark the beginning of the ninth year of detention without charge or trial at Guantánamo following a rally and march that morning. The briefing, titled “Obama’s Guantánamo,” addressed issues including the continued and worsening lack of transparency, resettlement for men who cannot return to their home countries, the threat of indefinite detention schemes in the U.S., the halt of transfers to Yemen and related responses to the recent terrorism attempt, and more.

Lakhdar Boumediene called in to the briefing from his home in France, and Omar Deghayes joined the briefing from his home in the United Kingdom. Mr. Boumediene was the lead plaintiff in the landmark Supreme Court case of 2008, Boumediene v. Bush brought by CCR and co-counsel , in which the Court affirmed that Guantànamo detainees have the right to file writs of habeas corpus in U.S. federal courts. He was released on May 15, 2009. As a child, Omar Deghayes settled with his family in the U.K. as a refugee from Lybia. Picked up in Pakistan and sent to Bagram and Guantánamo, he was blinded in one eye at the base in 2004. Mr. Deghayes was released from Guantanamo to the U.K. on December 19, 2007.

“It is of utmost importance to me that those who were responsible for the attacks of 9/11 face a court,” says Adele Welty in the ACLU video. Her son was a New York firefighter killed at the World Trade Center.

“It’s very important to me that we get the right people,” says John Leinung, whose stepson was killed while working in the Twin Towers. “That the right people are punished or held to account for what happened on 9/11.”

Pat Perry, whose son was a police offer killed on 9/11, says she would rather see the Guantánamo detainees who have been held without charge “appear in open court where we can all sift out what we feel is really the truth and the judges can make a decision based on our Constitution.”

These 9/11 family members all say they agree that holding detainees without charge in Guantánamo is a betrayal of American values and they look forward to true justice being served in federal court.

“My son gave his life to save those trapped in the Twin Towers,” Welty says, “and it does not honor him that we violate our Constitution in retaliation for what happened on September 11.”

Presidential power has been on a pathway of expansion beyond what the Constitution outlined, and what a government of, by, and for the people requires, since George Washington was president. That expansion, which hit the highway after World War II, got a turbo boost during the co-presidency of George W. Bush and Dick Cheney.

Some of the new powers that those two stole from Congress, the courts, the states, and us the people are being abused less severely in this new age of Obama; others, more so; but far more crucially, in a pattern followed by recent presidencies, all are being maintained, if not expanded, and thus more firmly cemented into place for future presidents to use. Wherever you fall on the political spectrum, you are likely to strongly oppose some major decisions of some future presidents. So it shouldn’t be hard to envision some pretty undesirable consequences that might flow from presidential power that increasingly approaches the absolute.

Our television news and newspapers don’t seem terribly interested in this story, despite scraping its surface with reports on the many “czars” Obama has appointed or lectures on the importance of renewing, or only marginally amending, the PATRIOT Act. And Congress seems, if possible, even less interested. That’s not so surprising, given that we’ve replaced the three branches of government with the two parties, so that at any given time roughly half the members of Congress take as their leader a president who is theoretically supposed to execute the will of Congress. And the other half usually obey their party’s “leaders” in Congress, whose primary interest is in electing one of their own as the next president. Both parties continue to value presidential power itself either for its uses in the present, or for when their candidate is elected. Everyone wants to inherit the imperial presidency, not constrain it.

Under these circumstances, bills to create commissions investigating presidential abuses, to place a judicial check on claims of “state secrets,” limit the use of presidential signing statements, or to allow more than eight members of Congress to be given “security” briefings by the executive branch prove not to be priorities for either party.

These days, the old-fashioned idea of checking executive abuses of existing laws through the issuance of subpoenas or by impeachment is, in Washington, widely considered a scandalous proposition. Congress impeached a judge this year who had groped his employees, but Jay Bybee, who signed secret memos purporting to legalize aggressive war and torture, and who now holds a lifetime seat on the Ninth Circuit Court of Appeals, is protected from such a step by his recent membership in the executive branch (and the displeasure Fox News would express toward his impeachment).

In April, Sen. Patrick Leahy, chairman of the Senate Judiciary Committee, asked Bybee to testify, and the judge refused, just as many of his former colleagues in the Bush administration had in 2007 and 2008. Leahy may be unwilling to follow up by issuing a subpoena that even the new Department of Justice might refuse to enforce. The current department, for instance, allowed the White House Counsel to negotiate partial compliance with a House Judiciary Committee subpoena by former presidential advisor Karl Rove. And if Leahy is like most members of Congress, he will not even consider the option of using the Capitol Police to enforce a subpoena himself — something that no committee has done in 75 years.

All Power to the President

Any quick survey of the powers the presidency now claims would have to include the power to make laws, the power to make wars, the power to spend money, the power to make treaties, the power to grant immunity for crimes, the power to operate in secrecy, the power to spy without warrants, the power to detain without charge, and the power to torture.

Laws are still made by Congress, but they can be rewritten via signing statements; that is, statements announcing a president’s intention to violate particular sections of the very bill he is signing into law. Neither Congress nor President Obama has thrown out all of Bush’s extensive signing statements that did indeed alter laws. In fact, Obama has announced that his subordinates will review his predecessor’s signing statements only as the need arises.

This policy might please those imagining that the Obama administration will always make the right decision about whether to maintain or reject a Bush-made amendment to a law, but it does nothing to strip the presidency of the power to use the mechanism of the signing statement to re-make or amend or alter new laws. As it happens, Obama has already published his own law-making signing statements.

Presidents now also routinely determine national policy through executive orders and, in doing so, run the country out of the White House rather than through departments headed by officials approved by Congress. They also increasingly dictate a legislative agenda to Congress — and both members of Congress and members of the public generally accept without comment or opposition that inversion of our constitutional system. And then there are the secret memos.

In those secret memos, Bush’s lawyers in the Department of Justice dutifully “legalized” numerous illegal acts, including aggressive war and torture. Despite years of public back-and-forth between the White House and the Congress over the question of whether to ban torture, any act of complicity in torture was already a felony in the U.S. code under the Anti-Torture Act, which enforced the Convention Against Torture signed by President Ronald Reagan. However, the secret Justice Department memos were taken as the final word in legality, no matter what the law said.

Obama has directed the Justice Department not to prosecute those at the highest levels responsible for producing those memos, though he has permitted consideration — whether seriously intended or not — of the possibility of prosecuting a handful of low-ranking staffers who strayed beyond the illegal policies outlined in the memos. Not only does this bestow immunity on the most prominent criminals, reversing the approach — starting at the top — that the U.S. took at the Nuremburg war crimes trials after World War II, but it has the potential to create a terrifying precedent for the future. If a president can use his justice department to legalize a crime simply by asking a lawyer to write a memo, then who can doubt that a president has something approaching absolute power?

Presidents, not Congress, do indeed make wars now, whether or not they consult Jay Bybee’s memo on the subject. They make wars without congressional declarations of war, using instead vague bills to maintain a pretense of congressional involvement — and then they don’t even comply with the terms outlined in those authorizations. Illegal (as well as unconstitutional) as they may be, these wars can be expanded into apparently permanent occupations that include the construction of gigantic military bases from which additional wars may be launched. In the process, mercenaries often take the place of soldiers, and as “private contractors” they then operate even further from congressional oversight or the law.

To invade Iraq, President Bush spent money not appropriated for that purpose. He also gave himself the power to transfer money into “black budgets” beyond the purview of all but a few members of Congress, and so use it for secret tasks signed off on by his officials. Of course, massive secret budgets under the control of the president are nothing new, though they’ve grown through the years. Neither are they constitutional or sustainable.

On October 6th, the leaders of the two parties met with President Obama and, by Senate Majority Leader Harry Reid’s account, let him know that he could end, decrease, maintain, or escalate the war in Afghanistan and Pakistan as he saw fit. The Senate had voted the previous week not to call on war commander Stanley McChrystal for public testimony about that ongoing war until after the president determines his war policy, which of course means a war policy for all of us. Two days later, in a surprising flicker of dissent, House Appropriations Committee Chairman David Obey released a statement suggesting that, contrary to everything he’d said for years, he recognizes that Congress has the power to choose not to fund those wars and thereby to end them.

As his presidency was winding down, George W. Bush concluded an unofficial treaty (though it was called a Status of Forces Agreement) with the government of U.S.-occupied Iraq for three more years of war there without feeling the slightest need for it to be ratified by the Senate. Ever since, the U.S. military has actually violated the terms of that document, while its key commanders continued to publicly state their intention to remain in Iraq beyond the end of 2011, a clear violation of the agreement. In the meantime, this White House has used the treaty as cover for an ongoing illegal occupation of Iraq with, at this point, 120,000 U.S. troops and tens of thousands of private contractors.

Is Congress Broken?

When many feared that Bush might pardon his subordinates for crimes he had himself authorized, the consensus among members of Congress and scholars was that he could, in fact, do such a thing. In some ways what both Bush and Obama have actually done is worse. With a big assist from Congress in the form of bills like the Military Commissions Act and the FISA Amendments Act, they have worked to grant immunity for crimes without even naming the criminals or revealing what they have done. Obama’s Department of Justice is now arguing, appealing, or re-appealing in various court cases to keep secret the abuses of government officials and corporations involved in torture and warrantless spying. Recently, the Justice Department even argued that, when it comes to denying information to a court or the public, telecommunication corporations must be considered a part of the executive branch of the federal government, and earlier this year the administration threatened the British government with an end to intelligence sharing if it revealed evidence of torture.

President Obama announced that he will only claim the right to hide information from a court on the grounds that important “state secrets” are involved after careful review by lawyers at the Department of Justice. This may be an improvement over the Bush years — not exactly a hard standard to reach — but notably this decision still cedes not an ounce of power to any branch other than the executive, even as Obama’s lawyers make radical “state secrets” claims in attempts to block entire court cases, rather than over particular pieces of information.

While this president is ceding modest amounts of territory claimed by the previous one, he is ceding nothing when it comes to presidential power itself. For example, the president said he would release White House visitor logs (as the Bush administration had not), just not those already recorded, including the ones that held records of the visits of deal-making health insurance executives, nor any future logs that he thinks would endanger “national security.” That offers change of a sort, however modest, but leaves it entirely in the president’s hands to decide which logs to release.

This administration has indeed released some of the secret memos that Bush’s Department of Justice used to justify torture and never shared with the public, but only when compelled by courts. The Justice Department has, in fact, fought fiercely against their release and has redacted significant sections of them before making them public.

Bush claimed for the presidency the power to detain people without charge or legal process — and then used it. Obama stood in front of the U.S. Constitution in the National Archives in Washington and asserted the same power, in violation of the right of habeas corpus found in that torn and tattered document. Director of Central Intelligence Leon Panetta and presidential advisor David Axelrod have similarly made clear that the president still claims the power to engage in “harsh interrogation techniques” but chooses not to use it. Torture in this way has been transformed from a crime into a policy choice, with the intended message apparently being that we can stop torture temporarily by choosing to elect Democrats. This is perilous territory.

Perhaps presidents simply cannot be expected to give back powers gained by the executive branch, but shouldn’t we expect Congress to work to take them back on our behalf? When Alberto Gonzales resigned as attorney general, he did so because a rapidly growing list of members of Congress signed onto a one-sentence bill directing the House Judiciary Committee to investigate possible grounds for his impeachment. Such an approach toward Judge Jay Bybee could begin to restore the power of Congress to assert itself in other areas as well, while pressuring the Justice Department to enforce the law, and potentially making public a great deal of information through the subpoenas involved in any impeachment hearing, which does not permit claims of “executive privilege.” Information subpoenaed in an impeachment hearing must be produced, or the failure to produce it can become another impeachable offense.

Many of us probably consider our current president a much nicer guy than our local congressional representative. That doesn’t change the fact that influencing a president, or even a senator, via grassroots pressure is infinitely more difficult than influencing a member of the House of Representatives.

This is not a new discovery. After all, isn’t this, in part, why the House was given the power of the purse and the power of impeachment? Being closer to the ground, that body is, by its nature, going to be more amenable to democratic pressure and direction. If we want once again to have a real hand in making our nation’s policies, our best shot — admittedly still a distinctly uphill course — is to focus on the person who represents us in the House.

Unfortunately, we have to compel each of them to do something they have come to collectively fear: taking back the power originally bestowed on them and not on behalf of their party, but of their branch of government, of the Constitution to which they’ve sworn an oath, and of the proper sovereigns of this nation: we the people. Otherwise the chief legacy of the Obama years will, like those of his immediate predecessors, be the slide from republic into empire and the continuing growth of an imperial presidency.

David Swanson served as press secretary for Kucinich for President in 2004, runs the AfterDowningStreet.org website, and is the creator of Impeachbybee.org. His new book is Daybreak: Undoing the Imperial Presidency and Forming a More Perfect Union (Seven Stories Press). He is now touring the country for the book. You can find out when the tour will be in your town by clicking here.

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

Last week, the Obama administration finally admitted that it might not be possible to close Guantánamo by the President’s self-imposed deadline of January 22, 2010, when defense secretary Robert Gates told ABC News’ “This Week” that it was “going to be tough” to meet the deadline. The announcement followed what appeared to be strategic leaks by administration insiders, which were designed to blame White House Counsel Greg Craig for the government’s woes.

Why it has taken so long to clear 75 prisoners for release?

It was Craig who had pushed for the deadline, but although the Washington Post, in a joint article with ProPublica, reported several critical comments from current officials, claiming that Craig’s drive to set a deadline flew in the face of conflicting advice — in particular, a claim by “a senior government lawyer” that “the entire civil service counseled him not to set a deadline” — others were more supportive.

The Post closed its article with a comment from an administration official who was “more effusive,” and who stated, “Greg Craig is a hero. He took responsibility for this policy from the beginning, and he has guts and character. If we can’t get it done by the deadline, then at least we’ll have done as much as we can as smoothly as we could have.” In addition, in his interview with ABC News, Secretary Gates also declared his support for the initiative:

When the president elect met with his new national security team in Chicago on December 7th … last year, this issue was discussed, about closing Guantánamo and executive orders to do that and so on. And the question was, should we set a deadline? Should we pin ourselves down? I actually was one of those who said we should because I know enough from being around this town that if you don’t put a deadline on something, you’ll never move the bureaucracy.  But I also said and then if we find we can’t get it done by that time but we have a good plan, then you’re in a position to say it’s going to take us a little longer but we are moving in the direction of implementing the policy that the president set. And I think that’s the position that we’re in.

Moreover, the lion’s share of the blame for delays in the closure of Guantánamo actually lies with lawmakers and with other officials in the Obama administration. After the President issued executive orders on his second day in office, which included the Guantánamo deadline, the administration then dithered, failing to support Guantánamo’s most celebrated innocents, the Uighurs, whose release into the United States was ordered by District Court Judge Ricardo Urbina last October, by backing the Court of Appeals in its decision to overturn that ruling in February this year.

This cowardice then allowed paranoid and opportunistic right-wingers to seize the initiative, reviving the Bush administration’s deceitful claims that Guantánamo is “full of terrorists” (as particularly promoted by former Vice President Dick Cheney), and encouraging both Democrats and Republicans in the Senate and the House of Representatives to pass legislation preventing the transfer of prisoners to the United States and withholding funding for the prison’s closure.

In addition, the government’s decision to support the Court of Appeals in the Uighurs’ case was not the only example of the Justice Department’s distressing failure to confront the many injustices inherited from the Bush administration. Since Obama came to power, those charged with preparing the government’s opposition to other prisoners’ habeas corpus petitions — apparently functioning without adequate insight from above — have persistently failed to recognize the weaknesses in the government’s case against a large number of the prisoners, and have repeatedly humiliated themselves in court, challenging habeas corpus petitions that they have not only lost, but that have been accompanied by withering criticism from the judges involved (see the cases of Abdul Rahim al-Ginco and Fouad al-Rabiah for the most severe examples).

The only apparent explanation for this lack of oversight is that, rather than focusing on the supposed evidence — or lack of it — in the habeas cases, the administration has focused instead on its own alternative to the court reviews, an interagency Task Force that has been reviewing the cases independently.

Last week, amidst the general gloom, some good news emerged from the Task Force, when a military spokesman announced that the interagency review had, to date, cleared 78 of the remaining prisoners. Three were released on the eve of the announcement (a Yemeni, Alla Ali Bin Ali Ahmed, who was repatriated five months after a judge ordered his release, and two Uzbeks, Oybek Jabbarov and Shakhrukh Hamiduva, cleared by military review boards under the Bush administration, who were sent to Ireland), but the information released in connection with the remaining 75 prisoners provides a fascinating snapshot into the workings of the Task Force and some of the difficulties of dealing with the toxic legacy of the Bush administration, even though, in other ways, the announcement also confirms the existence of an unnerving paralysis on the part of the Obama administration when it comes to actually releasing prisoners, and also raises questions about what the Task Force has actually been doing for the last eight months.

The 31 prisoners who could be released today

Of the 75 prisoners cleared for release, 18 had their release ordered by the courts, after successful habeas petitions, and of the remaining 57, at least 21, and probably as many as 36, were, like the Uzbeks mentioned above, cleared for release between 2006 and 2008 by Bush-era military review boards. For the first time, the Obama administration identified prisoners cleared for release by their nationalities, and although no names were given — to protect those who cannot be repatriated because of fears that they would face torture on their return, for whom delicate negotiations are ongoing with third countries who might take them — it is readily apparent from the list that, in the cases of 31 of these prisoners — from Kuwait, Saudi Arabia and Yemen — the need for anonymity is unnecessary, as none of these men have any reason to fear being returned to their home countries.

More significantly, there is no reason for any of these men to be held at Guantánamo for one minute longer, and no reason why they should not be put on a plane and flown home today, but such is the taint of Guantánamo that the administration has found reasons to delay releasing these men, even though they have been cleared for release by a combination of Bush-era military review boards, the US courts, and the Obama administration’s own interagency Task Force.

Of these 31 men, two — Khalid al-Mutairi and Fouad al-Rabiah — are Kuwaitis, who secured resounding victories in their habeas cases (especially Fouad al-Rabiah, whose extraordinarily story of torture and false confessions was mentioned above). Inexplicable delay forms part of their story too, as al-Mutairi was cleared two months ago and is still held, but I am optimistic that both men will soon be repatriated.

Three others are Saudis, and although their identities have not been revealed, and it is uncertain if they are the three remaining Saudis who were cleared for release during the Bush administration, there appears to be no good reason for their continued detention, as I explained in an article in March, when six cleared Saudis were held, and before three were released (see here and here).

Paranoia regarding the Yemenis

However, the biggest story by far, when it comes to prisoners cleared for release who are still held, concerns the Yemenis, who make up 26 of the 75 prisoners cleared for release (and around 95 of the 223 prisoners still held in Guantánamo). They include Yasim Basardah, who was cleared for release by a District Court judge in April, and Ayman Batarfi, a doctor whose release was approved by the Task Force that same month, essentially to head off a humiliating defeat in court. The others have not been identified, although it seems likely that they include some, if not all of the 12 Yemenis approved for release between 2006 and 2008 by Bush-era military review boards. And yet, despite the fact that some of these men have been cleared twice over the last three years, and despite the fact that, in April, the judge in Ayman Batarfi’s case, Judge Emmet G. Sullivan, criticized the government’s behavior in the strongest possible terms, these 26 men are still imprisoned in Guantánamo.

To understand quite how severely the courts regard the continued detention of men who have been cleared for release, it is worth recalling that, back in April, when Judge Sullivan accepted the government’s sudden decision to release Batarfi, he made a point of publicly stating that he hoped it was not “another ploy not to return Dr. Batarfi to his country of origin but to continue with his deprivation of his fair day in court,” and requested status reports every 14 days. He also stated:

I’m not going to continue to tolerate indefinite delay on the part of the United States government. I mean, this Guantánamo issue is a travesty. It ranks up there with the internment of Japanese-American citizens years ago. It’s a horror story in the American system of jurisprudence, and quite frankly, I’m not going to buy into an extended indefinite delay of this man’s stay at Guantánamo, or anyone else on my calendar.

That was six months ago, and I take it that, as a result, Judge Sullivan has now had to endure twelve status reports explaining why the government has not yet been able to free Dr. Batarfi (which must have pushed his patience to its limits). However, as an article in Sunday’s New York Times explained, the fear of releasing Yemenis is so deep-seated that the administration will resort to the most ludicrous claims to prevent their release.

The Times article discussed Alla Ali Bin Ali Ahmed, the man freed last weekend, five months after District Court Judge Gladys Kessler ordered his release, but although the author, Scott Shane, spelled out that Ali Ahmed, a teenager seized in a guest house in Pakistan, was cleared by Judge Kessler, who “ruled that his incarceration had never been justified and ordered the government to get to work ‘forthwith’ on his release,” and although he added that his lawyer, Brent N. Rushforth, stated that his client was known as “the sweet kid” to other prisoners in Guantánamo, this was not enough for the government, and it appears that Ali Ahmed may only have been released because Judge Kessler was on the verge of openly criticizing the government. As the Times described it, she “appeared to be losing patience with the delay in complying with her May 11 release order,” and this coincided with Ali Ahmed’s release.

For some time now, the government has been trying to persuade the Saudi government to extend its successful rehabilitation program — which processed over a hundred Saudi ex-prisoners in 2006 and 2007 — to the Yemenis, because it fears that, even though cleared for release, they might still constitute a threat. Negotiations have proven to be thorny — in particular, it seems, because the Saudi model relies upon strong family support that would not be available for the Yemenis in Saudi Arabia — but when the administration’s fears are spelled out, as they were in the Times on Sunday, it is clear that they are, to put it bluntly, completely unreasonable. In Scott Shane’s words, Obama administration officials explained that, “Even if Mr. Ahmed was not dangerous in 2002 …Guantánamo itself might have radicalized him, exposing him to militants and embittering him against the United States.”

The officials have valid fears about political instability in Yemen, and the existence of terrorist groups, even though the Yemeni authorities have stated that none of the 16 Yemenis returned from Guantánamo “have joined terrorist groups,” but whatever their fears, they do not seem to have reflected that, if their rationale for not releasing any of the Yemenis from Guantánamo was extended to the US prison system, it would mean that no prisoner would ever be released at the end of their sentence, because prison “might have radicalized” them, and also, of course, that it would lead to no prisoner ever being released from Guantánamo.

To me — and to many other readers, I hope — this is simply unacceptable, but it demonstrates yet again that only at Guantánamo can fear trump justice to such an alarming degree.

In a second article to follow soon, I’ll look at the cases of the other 44 prisoners cleared for release by the Guantánamo Task Force, from countries including Algeria, China, Egypt, Libya, Syria, Tunisia and Uzbekistan, who cannot be repatriated because of fears that they will face torture on their return, and ask why the Task Force’s decisions so closely mirror those already taken by Bush-era military review boards, and whether the administration is doing all it can to mitigate the taint of Guantánamo and to find new homes for these men in other countries.

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.

Source: Wikipedia

On August 24, Mohammed Jawad, an Afghan prisoner who was, perhaps, as young as 12 when he was seized after a grenade attack in Kabul in December 2002 and transported to Guantánamo, was finally freed after his habeas corpus petition was granted, and returned to Afghanistan.

He was welcomed by President Hamid Karzai, who offered to help him readjust to his new-found freedom by providing him with a house, and the Defence Minister, Abdul Rakhim Wardak, who offered to pay for him to study overseas, following a statement by Jawad, in which he announced that he would like to study to become a doctor.

I had been reporting Jawad’s story since October 2007, when he was first put forward for a trial by Military Commission (the “terror trials” introduced by former Vice President Dick Cheney in November 2001), despite his age, despite the fact that a grenade attack in wartime is not a war crime, and despite severe doubts that he actually threw the grenade.

I had also written extensively about the fine work undertaken on his behalf — and against the Commissions in general — by his military defense attorney, Maj. David Frakt, who delivered a compelling speech to a House Committee in July, and by his former prosecutor, Lt. Col. Darrel Vandeveld, who resigned as a prosecutor in September 2008, when — based largely on his experience of Jawad’s case — he declared that the Commissions were incapable of delivering justice, and followed up by submitting a stunning submission in Jawad’s habeas corpus petition in January 2009 and a powerful speech to a Senate Committee in July.

I had also praised Col. Stephen Henley, the judge in Jawad’s proposed trial by Military Commission, who had effectively demolished the case against him last October and November, when he ruled that the government’s primary evidence — confessions made to Afghan and US forces shortly after his capture – could not be used because they had been extracted through threats of torture.

There’s also Judge Ellen Segal Huvelle, who had denounced the government’s case against Jawad during his habeas hearing in July, when she condemned the Justice Department for its persistent obstruction, and repeatedly stressed that the government did not have a single reliable witness, and that the case was “lousy,” “in trouble,” “unbelievable,” and “riddled with holes,” and who finally granted his habeas petition on July 30.

I was aware of some of the contributions made by another member of the defense team, Maj. Eric Montalvo, as I had written, in June, about a visit to Afghanistan that had recently been made by Maj. Montalvo, who had come up with the latest information about Jawad’s possible age at the time of his capture, and had also been liaising with the Afghan authorities to encourage them to play a part in securing his release.

However, it was not until I contacted Maj. Frakt, to congratulate him personally for the part he played in securing Jawad’s release, that I learned how extensive had been the role played by Maj. Montalvo, and how Maj. Frakt hoped that the contributions of other members of the defense team would also be recognized.

As a result of these discussions, I reproduce below what Maj. Frakt told me about the unsung heroes in Mohamed Jawad’s case.

David Frakt: Thank you for recognizing the contributions of the Jawad defense team. The extraordinary story of how Maj. Montalvo ended up in Kabul is also worthy of comment. When I arrived at

Maj. David Frakt

the Office of Military Commissions-Defense in April 2008, we were extremely shorthanded and I was assigned two cases to try on my own. In the summer of 2008, additional military defense counsel started showing up at OMC-D looking for work.

In late June, I asked the eminently capable Lt. Cmdr. Katharine Doxakis (a Navy Reservist, soon to be promoted to Commander) to join the defense team on both the Jawad and al-Bahlul cases [the latter refers to the case of Ali Hamza al-Bahlul, which I covered here and here].

Lt. Cmdr. Doxakis made her first court appearance with me at a two-day hearing in August. At that point, it appeared that Mr. Jawad was headed to trial (a trial date was actually scheduled for December 2008, then moved to January 2009 due to the government’s inability to provide discovery in a timely manner, then delayed again due to a government appeal of Judge Henley’s ruling suppressing Mr. Jawad’s “confessions” as the product of torture, before finally being postponed indefinitely when President Obama assumed office).

Both Lt. Cmdr. Doxakis and I thought we needed another experienced trial lawyer on the Jawad defense team. When Maj. Eric Montalvo showed up later that month, we instantly hit it off. I immediately asked for him to be assigned to my team as assistant defense counsel.

Lt. Cmdr. Doxakis, Maj. Montalvo and I all worked together preparing for the next hearing, a suppression hearing in late September. It was shortly before this hearing that Lt. Col. Vandeveld resigned, and he appeared as a defense witness at this hearing. We had filed two suppression motions, one to suppress statements made to Afghan authorities, and one to suppress statements in US custody. Both were litigated at this hearing.

One of the difficulties with the Jawad case was that we were trying to reconstruct events from December 2002 based on very flimsy evidence. The investigation of the hand-grenade incident, such as it was, was incredibly shoddy and incomplete. Alleged witnesses had disappeared. Important evidence, such as a videotape of Jawad’s first interrogation, had also disappeared. We realized that in order to properly defend Jawad, we needed to conduct our own independent investigation into the crime, not just rely on the meager evidence provided by the government.

Unfortunately, at that time the Office of Military Commissions-Defense had no investigative personnel assigned to it. Accordingly, we were obliged to request funding for an investigator from the Convening Authority Susan Crawford [whose role overseeing the Commissions as an impartial advisor, despite her close connections with both Dick Cheney and David Addington, is discussed here and here]. We found an eminently qualified investigator with years of experience investigating murders and terrorism offenses. He had already investigated one high-profile case in Afghanistan.

He was even willing to do the work for half his usual rate because he felt it was important that detainees be given an adequate defense. Our request, like virtually every other request for resources made to the Convening Authority, was denied [see the note at the end of this article for further details about how most requests for resources were denied by the Convening Authority]. We appealed the denial to the military commission, but at the September hearing, our motion was denied.

It was clear that if we wanted to investigate, we were going to have to do it ourselves. Maj. Montalvo volunteered to go. As a combat-trained Marine, he was clearly our best choice to go into an active conflict zone to investigate. Lt. Cmdr. Doxakis was pregnant and I was preparing for the al-Bahlul trial in late October. Maj. Montalvo drafted another fine young Marine JAG, Capt. Chris Kannady, to join him on the trip. Maj. Montalvo’s mission to Afghanistan was highly successful. He located several key witnesses.

Many of these witnesses gave very different descriptions of the events of December 17, 2002, than the statements that had been ascribed to them by the prosecution. Maj. Montalvo took detailed photos, videos and sketches of the scene of the attack. We were prepared to use these to prove that several of the key witness accounts by the government witnesses were physically impossible.

Of course, the case never went to trial so we did not present our evidence in Court, but we did share it with the Justice Department and I believe that this ultimately led to their decision not to pursue an indictment against Jawad [following the granting of his habeas appeal by Judge Huvelle]. The evidence just wasn’t there.

Maj. Montalvo and Capt. Kannady also met with several senior Afghan officials. They explained to these officials what had happened to Jawad while in US custody to try to convince the Afghan government to press for Jawad’s release. In anticipation that Jawad would someday be released, they met with representatives from various agencies to determine what resources were available for Jawad upon his return and to begin to lay the groundwork for a rehabilitation and reintegration plan.

Finally, they met with Jawad’s family and tribal representatives. They took videos of Jawad’s family to bring back to Jawad at Guantánamo. These provided a tremendous lift to Jawad’s spirits.

Maj. Montalvo and Capt. Kannady returned to Afghanistan in May 2009 to conduct additional investigation and to meet again with Afghan officials. On this trip, they persuaded the Afghan Independent Human Rights Commission to file a lawsuit forcing the Afghan government to seek Jawad’s return. They persuaded the Afghan Attorney General and Minister of Defense to support Jawad’s return and to promise not to reincarcerate him upon his return.

They continued with their efforts to identify and establish relationships with organizations that could assist with the reintegration process for Jawad. They met with “new” witnesses that the government had identified. Once again, these witnesses’ accounts, as told to Maj. Montalvo, differed dramatically from what they had supposedly told the government.

When the government’s case against Jawad finally disintegrated for good in July, culminating in the grant of the writ of habeas corpus by District Judge Ellen Huvelle on July 30, the Jawad team immediately started making plans to assist with Jawad’s repatriation. I even asked the Judge to order the government to permit the defense to accompany Jawad home. She stated that she did not believe she had the authority to mandate the terms of release, but did strongly recommend to the government that defense counsel be permitted to be present.

Once again, the path to Afghanistan led through the Convening Authority Susan Crawford. All defense requests for funding for overseas travel must be approved by her. In early August, I submitted a request with a detailed justification, reproduced below:

Subject: Request for Team Jawad Travel To Afghanistan (U)

UNCLASSIFIED

Team Jawad proposes to send Major Eric Montalvo, Capt. Chris Kannady and their regular interpreter, Chand, to assist with the repatriation of Mohammed Jawad. Major Montalvo and Capt. Kannady have already made two trips to the theater and have all the necessary training and clearances to make the trip on short notice. More importantly, they have an established a network of contacts on the ground within the Afghan government, in the NGO community and with Mohammed’s tribe and family.

Team Jawad is working with UNICEF, the ICRC, and other government agencies, NGOs and human rights organization within Afghanistan to ensure that he is provided appropriate counseling and rehabilitation services. Team Jawad needs to be present to ensure a smooth transition to the new team of social workers and other aid groups who will be overseeing his rehabilitation and reintegration.

Major Montalvo and Capt. Kannady have received a number of personal assurances from senior government officials in Afghanistan, including the Minister of Defense, the Attorney General, and the Minister of Foreign Affairs, about what will happen to Mr. Jawad upon his return. Major Montalvo and Capt. Kannady need to be present to ensure that these promises are carried out.

There are a number of reasons why Team Jawad feels it is of paramount importance to be in Afghanistan to receive Mohammed when he arrives and to assist with his transition to Afghan society. Because of security rules at Guantánamo, Mohammed has been deprived of virtually all news from Afghanistan. He has no idea what is going on there now and is unaware of the seismic changes that have taken place in Afghanistan since he was detained in December 2002.  He will be landing in a war-torn country that is dramatically different from the place that he left seven years ago.

As the attached memorandum from the court-appointed psychologist attests, it is critical to have “familiar trusted adults” present when he reenters Afghan society after so many years in captivity. Mohammed’s lawyers are the only “familiar trusted adults” in his life. While one could argue that the representation of the client ends at the time charges are dropped, this has not traditionally been the practice of military defense counsel, who frequently continue to provide counseling and assistance after the criminal phase of representation has ended.

Team Jawad’s detailed counsel unanimously agree that under our duty of loyalty and thoroughness (required under the duty of competence) to our client, we have an ethical obligation to Mohammed that will not be fulfilled if one or more of us are not present to assist with his repatriation. As a matter of force protection, it is essential that we send a minimum of two officers.

It should be noted that US District Court Judge Ellen Segal Huvelle, at the time she granted the writ of habeas corpus, strongly recommended from the bench to the Department of Justice that Mr. Jawad’s lawyers be permitted to be present when he is turned over to Afghanistan. Clearly she did not believe that the representation ended upon ordering his release.  Indeed, I would suggest the US is obligated to provide Mohammed with the assistance of his lawyers in this critical stage.

Article 6 of the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, which the US ratified in 2002, requires that “States Parties shall take all feasible measures to ensure that persons within their jurisdiction recruited or used in hostilities contrary to this Protocol are demobilized or otherwise released from service. States Parties shall, when necessary, accord to these persons all appropriate assistance for their physical and psychological recovery and their social reintegration.” Article 7 of the protocol provides that “States Parties shall cooperate in the rehabilitation and social reintegration of persons who are victims of acts contrary to this Protocol.”

As a child allegedly recruited to participate in armed conflict, Mohammed is considered a victim entitled to rehabilitation and social reintegration. Unfortunately, the US has woefully failed to fulfill its obligations under this binding international treaty for the last six and a half years. Mohammed was offered virtually no assistance for his physical and psychological recovery. Indeed, the abuses he received at the hands of the US are the primary cause of his psychological problems.  We cannot morally, ethically or legally abandon him now when he is actually about to be reintegrated into society.

An additional justification for sending Major Montalvo and Capt. Kannady is the strong level of international interest in this case. Mohammed’s plight has become a significant matter of worldwide interest in the media. Indeed, just yesterday, the New York Times devoted an entire editorial to his long ordeal and urged the Obama Administration to release him without delay.  The mistreatment of Mohammed, a juvenile, by the United States has generated significant anger in Afghanistan.

This anger has been partially mollified by the fact that Mohammed has been so zealously and ably represented by his appointed military defense lawyers. It would not enhance the image of the US in Afghanistan at this critical period if we were to simply dump Mohammed unceremoniously on the Afghans. Having well-respected members of the US military present to aid in the repatriation process will undoubtedly generate favorable publicity and dampen negative feelings towards the US.

Finally, it is in the interests of all concerned that Mohammed be placed in a living situation where he has appropriate services available and is not at risk of being caught up in the ongoing armed conflict. Major Montalvo and Capt. Kannady can assess the security situation on the ground and ensure that suitable arrangements are made.

Thank you in advance for your prompt consideration of this request.

David J. R. Frakt, Major, USAFR
Defense Counsel
Office of Military Commissions

This request was denied by the Convening Authority in a terse one-paragraph letter which indicated that such a trip was beyond the scope of the duties of military commission defense counsel. Our boss, Col. Peter Masciola, the Chief Defense Counsel, appealed the denial to Susan Crawford’s boss, the DoD General Counsel. Late on Friday afternoon on August 21, the day before Jawad was scheduled to be released, we received word that the appeal was denied.

Maj. Montalvo was determined to be present when Jawad arrived in Afghanistan and had promised him that he would be there, even at his own expense. In anticipation that the official DoD travel request would be denied, he had obtained a civilian visa for himself to enter Afghanistan. Maj. Montalvo had been approved to retire from the US Marine Corps after 21 years of service and was in “terminal leave” status, a status in which one is still technically in the service, but is using up accumulated leave prior to the official retirement date.

During terminal leave, retiring officers are authorized to work for other employers and Maj. Montalvo had already begun work for a private law firm in Washington D.C. Using the firm’s credit card (with a promise to reimburse the firm from his personal funds) Maj. Montalvo booked an airline ticket for himself and our intrepid interpreter, who agreed to take a week of unpaid leave from his regular job with no promise of compensation in order to assist Maj. Montalvo. Capt. Kannady, still on active duty, was denied permission to go by the military chain of command. As for me, by this time, my military orders had expired and I was back at my civilian job as a law professor in California.

Before Maj. Montalvo departed, I promised him I would find a way to pay for the trip, even if I had to pay for it myself. Maj. Montalvo told me that his only concern was ensuring that our interpreter was paid. I am pleased to report that through the extraordinary generosity of the ACLU, Human Rights Watch, and Amnesty International, I was able to raise enough money to reimburse Maj. Montalvo for his expenses and to pay our interpreter, albeit at 50% of his usual rate.

Maj. Montalvo’s trip was an extraordinary success. He was able to put in place an effective rehabilitation and reintegration plan for Jawad in coordination with the Afghan government, the US State Department, UNICEF, and various other intergovernmental organizations and NGOs. Maj. Montalvo’s efforts received substantial positive publicity in the international media, and the US Embassy sent a letter of appreciation in praise of his efforts to the Chief Defense Counsel.

Upon Maj. Montalvo’s return, Lt. Cmdr. Doxakis submitted a request for additional funding to go back and check on Jawad’s progress later this year. The request was denied.

While I have received the lion’s share of the credit for winning the release of Mohammed Jawad, I could not have done so without the tireless contributions of the entire defense team. Maj. Montalvo’s extraordinary selflessness was just one of many examples of the heroic efforts of our team to do justice and uphold the rule of law in the face of continuous opposition from the US government (except Lt. Col. Vandeveld, of course).

While this narrative focuses on the contribution of my military co-counsel and our interpreter, I would be remiss if I failed to mention my fine habeas co-counsel from the ACLU National Security Project, Hina Shamsi (now at NYU), Jonathan Hafetz, and our local counsel Art Spitzer, who kept us out of trouble by ensuring that we complied with D.C. local rules. And of course, no attorney is effective without strong paralegal administrative and research support.

We had several highly dedicated military paralegals assisting us and received exceptional research support from law students at Duke’s Guantánamo Defense Clinic. Our habeas efforts were also enhanced considerably by outstanding support from Joe Pace, a law student at Yale.

Note by Andy Worthington: In order to understand why virtually every request for resources made to the Convening Authority by the military defense lawyers was denied, it is important to understand, as Col. Masciola, the Chief Defense Counsel, explained in testimony to the House Judiciary Committee on July 30 (PDF), that the Convening Authority holds an “untenable and inherently conflicted role.”

In the military justice system, it makes sense for the convening authority in courts-martial cases — generally the commander of the unit in which the alleged crime took place — to be responsible for overseeing both the prosecution and the defense, because “the court-martial takes place in a military unit in which the convening authority, as commanding officer, is the ultimate military authority and promotes military discipline and efficiency.”

In the Military Commissions, however, as Col. Masciola explained, “Neither logic nor military reality compels any such centralization of prosecution and defense control in the hands of a single individual.” Pointing out that the Office of Military Commissions-Convening Authority is “entirely a creature of Congressional and Department of Defense Regulation, headed by a political appointee (who is currently a civilian),” Col. Masciola added that there was no “military or otherwise natural necessity for the Convening Authority to hold ultimate power over funding of both the prosecution and defense.”

Col. Masciola also explained that the in-built bias in the role was readily apparent, because although, on the one hand, the Convening Authority is responsible for “the ultimate decision to proceed with charging and trial of the accused,” the “ultimate acceptance or rejection of pretrial agreements” and “initial review and correction of all convictions” (“all prosecutorial or quasi-prosecutorial functions,” in his words), she is also responsible for “all of the most critical defense resource and funding decisions: the initial decision whether or not the defense is entitled to retain and fund defense experts at government expense, the initial decision to authorize travel funding of all witnesses (which, given the location of the accused and trials in Guantánamo Bay, is tantamount to virtual veto power over the presentation of most witnesses), and to provide for interpretation and translation services for the defense.”

The result, as he proceeded to explain, is that, “because the Convening Authority is the de facto chief prosecutor as well as the arbiter of defense resources, defense requests have not been ruled upon with even a semblance of fairness or objectivity.” As examples, he explained that, although 56 requests for expert assistance were filed in eleven cases, only nine were granted, and six of these were in the case of Omar Khadr. He added that none were granted in any of the four capital cases, and described these decisions as “astonishing, given the special need for mitigation specialists and other experts in capital cases,” as recognized by the Supreme Court and the Court of Appeals for the Armed Forces.

As Col. Masciola also explained, perhaps the most significant effect of having a politically-appointed Convening Authority overseeing both the prosecution and the defense is that, when requests for defense resources are made, “simply filling out a request to the CA requires our defense teams to lay out, in detail, defense strategy and privileged materials that the CA freely shares with the prosecution. Moreover, in practice, the prosecutors have enjoyed a vote on whether or not defense counsel requests will be granted.”

Col. Masciola’s testimony was delivered (along with the statements of Maj. Frakt and Lt. Col. Vandeveld, mentioned at the start of this article) in an attempt to persuade Congress to reconsider its plans to revive the Commissions in an amended form, as proposed by President Obama. Given the bias he describes above, it is, I think, remarkable that Mohammed Jawad made it through the entire process and eventually secured his release. But it remains deeply troubling to me that, as Col. Masciola explained to the House Committee, the “inherently conflicted role” of the Convening Authority is not addressed in the Senate bill aimed at reviving the Commissions, and, moreover, that Susan Crawford, a protégée of Dick Cheney and a close friend of David Addington, is still in her job nine months after Obama took office.

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

The government was hoping that offering tribunals to evaluate the prisoners’ status would perform a useful public relations function, making the administration appear to be granting important rights to the 600 or so prisoners held in Bagram, and distracting attention from the real reason for its purported generosity: a 76-page brief to the Court of Appeals for the District of Columbia, submitted yesterday, in which the government attempted to claim that “Habeas rights under the United States Constitution do not extend to enemy aliens detained in the active war zone at Bagram Airfield in Afghanistan.”

The main reason for this brazen attempt to secure a public relations victory before the appeal was filed is blindingly obvious to anyone who has been studying the Bagram litigation over the last five months. In April, Judge John D. Bates ruled that three foreign prisoners seized in other countries and “rendered” to Bagram, where they have been held for up to six years, had the right to challenge the basis of their detention in US courts.

Below, I discuss the government’s position regarding these men, and explain why introducing Guantánamo-style tribunals at Bagram is no substitute for the Geneva Conventions, and at the end of the article I also ask whether the government may not have an even darker motive, related to what I perceive to be comments from administration officials revealing Bagram’s ongoing use as a secret prison for foreign suspects “rendered” from other countries.

Why bringing Guantánamo to Bagram is intended to exclude the US courts

Despite fierce opposition from Obama’s Justice Department, which clung to the line taken by the Bush administration, Judge Bates ruled in April that Boumediene v. Bush — the Supreme Court ruling last June, which granted constitutionally guaranteed habeas corpus rights to the prisoners in Guantánamo — extended to foreign prisoners “rendered” to Bagram, because “the detainees themselves as well as the rationale for detention are essentially the same.”

He added that, although Bagram is “located in an active theater of war,” and that this may pose some “practical obstacles” to a court review of their cases, these obstacles “are not as great” as the government suggested, are “not insurmountable,” and are, moreover, “largely of the Executive’s choosing,” because the prisoners were specifically transported to Bagram from other locations.

Judge Bates was undoubtedly correct, for two reasons: firstly, because, as I explained at the time, “only an administrative accident — or some as yet unknown decision that involved keeping a handful of foreign prisoners in Bagram, instead of sending them all to Guantánamo — prevented them from joining the 779 men in the offshore prison in Cuba”; and secondly, because he refused to extend habeas rights to an Afghan prisoner “rendered” to Bagram from the United Arab Emirates in 2002 — and, by extension, to the rest of the Afghans in Bagram, seized in Afghanistan, who constitute all but 30 or so of the 650 men held in the prison — primarily because he agreed with the government’s claim that to do so would cause “friction” with the Afghan government regarding negotiations about the transfer of Afghan prisoners to the custody of their own government.

Reinforcing its hopes that offering tribunals to the prisoners would deflect attention from its desire to keep holding “rendered” prisoners at Bagram indefinitely, the government included an Addendum with its brief on Monday, outlining its plans for the new tribunal system.

This is designed to replace an existing review system, which, in the words of Judge Bates, “falls well short of what the Supreme Court found inadequate at Guantánamo” in Boumediene, being both “inadequate” and “more error-prone” than the notoriously inadequate and error-prone system of Combatant Status Review Tribunals (CSRTs) that was established at Guantánamo to review the prisoners’ cases.

Reporters have been quick to spot that the new review system — far from providing an adequate system that would, presumably, satisfy the Supreme Court — is, in fact, little more than a carbon-copy of the CSRTs, which were severely criticized by the Supreme Court in Boumediene, and which were also savaged by Lt. Col. Stephen Abraham, a veteran of US intelligence who worked on them, who explained, in a series of explosive statements in 2007, that they were designed primarily to rubberstamp the administration’s insistence that the men were “enemy combatants,” even though they had not been adequately screened on capture.

What has happened to the Geneva Conventions?

This omission of screening on capture — which has applied at Bagram ever since — came about because, under instructions from the highest levels of government, the military was obliged to shelve its plans to hold competent tribunals under Article 5 of the Geneva Conventions, despite the fact that they had been pioneered by the US, and had been used successfully in every war from Vietnam onwards. Held close to the time and place of capture, these tribunals (as opposed to the CSRTs, which mockingly echoed them), comprise three military officers, and are designed to separate combatants from civilians seized in the fog of war, in cases where it is not obvious that prisoners are combatants (when they are not wearing a uniform, for example), by allowing the men in question to call witnesses.

During the first Gulf War, around 1,200 of these tribunals were held, and in nearly three-quarters of the case, the men were found to have been wrongly detained, and were released. The failure to implement these tribunals in the “War on Terror” contributed enormously to the filling of Guantánamo with prisoners who had no connections to any form of militancy whatsoever, and these initial errors were not redressed when a skewed version of the tribunals — the CSRT system — was introduced two and half years later.

As a result, plans to introduce Guantánamo-style tribunals to Bagram — in which prisoners are assigned military representatives instead of lawyers, and may call witnesses and present evidence if “reasonably available” — may be an improvement on the existing system of Unlawful Enemy Combatant Review Boards at Bagram — in which the prisoners have no representation whatsoever, and are only allowed to make a statement before they hear the evidence against them — but it fails to take into account the fact that non-uniformed prisoners seized in wartime, like those at Bagram, should, under the terms of the Geneva Conventions, be given competent tribunals on capture, and then, if found to be combatants, held unmolested until the end of hostilities.

Despite being addressed in the DoD’s new proposals, these concerns are not mitigated by the fact that, according to these plans, new prisoners will be subjected, on capture, to cursory reviews by “the capturing unit commander” and by the commander of Bagram to ascertain that they “meet the criteria for detention,” and the problem is underlined by the DoD’s insistence that it is not merely holding prisoners “consistent with the laws and customs of war,” but also holding those who fulfill the criteria laid down in the Authorization for Use of Military Force (the founding document of the “War on Terror,” approved by Congress within days of the 9/11 attacks), which authorized the President to detain those who “planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001,” or those who supported them.

So is Bagram Obama’s new secret prison?

However, while this is a genuinely disturbing development, because it suggests that the Obama administration is essentially following President Bush’s lead by unilaterally rewriting the Conventions, presumably to allow it to continue exploiting prisoners of war for their supposed intelligence value (even though the DoD explained, in its proposal, that “intelligence value, by itself, is not a basis for internment”), only one major media outlet — the New Yorker — has picked up on a disturbing disclosure in the Times’ coverage of the story on Sunday. I reported this in an article yesterday, when I explained that there was something deeply suspicious about the officials’ statement that:

the importance of Bagram as a holding site for terrorism suspects captured outside Afghanistan and Iraq has risen under the Obama administration, which barred the Central Intelligence Agency from using its secret prisons for long-term detention.

As I explained yesterday, this “seems to confirm, in one short sentence, that, although the CIA’s secret prisons have been closed down, as ordered by President Obama, a shadowy ‘rendition’ project is still taking place, with an unknown number of prisoners being transferred to Bagram instead.”

In a blog post for the New Yorker, Amy Davidson also picked up on the statement, calling it a sentence “that doesn’t make much sense,” and then asked:

So closing Guantánamo increases the need for a new Guantánamo, and barring the use of secret prisons just means that you need to find a new place to stash secret prisoners? Have we had it with Guantánamo because it’s unfashionable — like a played-out spring-break destination, now overrun with journalists and human-rights lawyers hopping on planes in Florida — or because we actually don’t like extrajudicial, indefinite detention?

While I await further developments, I recall that, back in April, CIA director Leon Panetta explained that, although the CIA “no longer operates detention facilities or black sites and has proposed a plan to decommission the remaining sites,” the agency “retains the authority to detain individuals on a short-term transitory basis.” Panetta added that, although no detentions had occurred since he became director, “We anticipate that we would quickly turn over any person in our custody to US military authorities or to their country of jurisdiction, depending on the situation.”

Is this what is happening now at Bagram? Shortly after Panetta made his comments, I noted that “the only logical conclusion” I could draw was that, “essentially, the Obama administration’s only real problem with ‘extraordinary rendition’ is one of scale. The Bush administration’s industrial-scale rendition policies have been banished, but the prospect of limited rendition — to third countries rather than to the US court system, as would surely be more acceptable — is being kept as a possible option.”

Whether hidden transfers to third countries are taking place is unknown, but from my reading of the officials’ comments to the Times, I infer that the CIA is now handing suspects over to the US military, including those captured outside Afghanistan, and that this is the reason, above all, that the government is anxious to prevent the US courts from having access to foreign prisoners in Bagram.

Moreover, as with the Bush administration, the indications are that this process focuses solely on the gathering of “actionable intelligence” — or with “decommissioning” suspects — and that those responsible for implementing it have, yet again, chosen to ignore the fact that terrorism is a crime, prosecutable in the US courts, and not an act of war requiring secret prisons and extra-legal detention.

It doesn’t matter how much it may be dressed up in review procedures that include only the following “[p]ossible recommendations” for what will happen to those prisoners who “meet the criteria for internment”: “continued internment” in Bagram, transfer to the Afghan authorities for prosecution, transfer to the Afghan authorities “for participation in a reconciliation program,” and, in the cases of “non Afghan and non-US third-country national[s],” options “that may also include transfer to a third country for criminal prosecution, participation in a reconciliation program, or release.”

What, I wonder, are the options that were not included?

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.

Their views range from cautious optimism to total condemnation.

There are some 600-plus prisoners being held at the U.S. military facility near Kabul. Some have been held for years without lawyers or any charge filed against them. There have been many allegations involving the torture of prisoners. Critics also charge that President Barack Obama has been turning Bagram into a new Guantanamo, since terror suspects are no longer being sent to GITMO because of plans to close it in January.

The new guidelines issued by the Defense Department (DOD) would assign a United States non-lawyer military official to each detainee. They would be tasked to gather exculpatory witnesses and evidence to present before review boards to be appointed by the U.S. military.

Currently, these detainees – some of whom have been imprisoned for more than six years – do not have access to lawyers and have no right to hear the allegations against them. Their status as “enemy combatants” is theoretically reviewed periodically by military panels, but critics say these reviews are incomplete, prejudiced and ineffective.

Tina Monshipour Foster, Executive Director of the International Justice Network (IJN), a legal advocacy group that represents four Bagram detainees in a pending federal court case, called the proposed changes “a step in the wrong direction.”

She told us, “No set of procedures will have legitimacy until there is transparency and accountability for any violations of the military’s own rules. Preventing the accused from having contact with his lawyer is antithetical to any legitimate system of justice.”

She said the first step should be to allow the detainees access to actual lawyers. Anything less, she added, “only invites rule-breaking, and casts doubt over the legitimacy of any proceedings that may be going on behind closed doors.”

“The ‘new’ procedures adopted by the Obama administration are not new at all; they appear to be exactly the same as the procedures created by the Bush administration in response to prior court challenges by Guantanamo detainees,” she said.

“The idea of assigning a non-lawyer ‘personal representative’ who does not legally represent the detainee, but works for the military, is a step in the wrong direction. We already know that this doesn’t result in fair proceedings from the failed experiment at Guantanamo — called the “Combatant Status Review Tribunals” (CSRTs) — which the Supreme Court found were wholly inadequate and failed to provide a meaningful opportunity for the detainees to challenge the legality of their detention.”

A more hopeful note was struck by Sahr Muhammed Ally, senior associate for Law and Security at Human Rights First, who has interviewed several former Bagram detainees. She told us, “These new procedures appear to be an improvement from the current review regime which a U.S. district court found far worse than the discredited review procedures in Guantanamo.”

But she was quick to add that “Given the lessons learned from Guantanamo, it is important that detention review procedures in Bagram must provide detainees a legal representative to ensure a meaningful mechanism for detainees to challenge their detention which the new procedures don’t provide.”

She said, “It is equally important to improve the reliability of information leading to capture of an individual in order to mitigate the risks of erroneous detentions, which the new procedures do not address.” She called for independent, public monitoring of the implementation of the new procedures in order to assess their effectiveness.

David Frakt, a law professor at Western State University and former Guantanamo defense counsel, was skeptical that the Administration’s new rules would work.

He told us, “The administration’s proposal to provide greater rights to detainees at Bagram reminds me of the Bush Administration’s woefully inadequate Combatant Status Review Tribunal (CSRT) process for detainees at Guantanamo, which has been suspended by the Obama Administration after serious criticism by the Supreme Court….”

He said, “The most obvious flaw with the proposed process is the failure to provide counsel to the detainees. Instead, the administration proposes to assign officers with no special expertise to serve as the detainees’ representative. This model was a complete failure for the CSRTs and should not be repeated.”

He added,” It is simply unrealistic to expect non-lawyers to zealously advocate on behalf of the detainees, or to be effective in gathering witnesses and evidence to challenge the lawfulness of the detention.”

In April, the American Civil Liberties Union filed a Freedom of Information Act (FOIA) request asking the Obama administration to make public records pertaining to the detention and treatment of prisoners held at Bagram. The government has not yet turned over the records.

Melissa Goodman, a staff attorney with the ACLU National Security Project, said that while she found the proposed new guidelines “encouraging,” she remains concerned about the level of secrecy that surrounds Bagram. “The public remains uninformed of basic facts such as who is imprisoned there, how long they have been held, where they were captured and on what grounds they are being subjected to indefinite detention. The government should make public documents that could shed light on this crucial information about the detention and treatment of prisoners at Bagram,” she said.

Chip Pitts, a lecturer at the Stanford University law school and president of the Bill of Rights Defense Committee, also expressed skepticism. He told us, “whatever the new rules say, it’s crucial that they distinguish between classical and legitimate conflicts where the rules of war apply, and the continuing attempt to encompass all counterterrorism within the illegitimate, overbroad, so-called ‘war on terror’ framework that wrongly disregards fundamental rights of civilians who are not active on actual battlefields.”

While it is unclear how soon the Pentagon’s new guidelines will be implemented – largely because of lack of personnel — they appear to have been announced with some sense of urgency. The probable reason is that the Obama administration is preparing to appeal a federal judge’s ruling in April that some Bagram prisoners brought in from outside Afghanistan have a right to challenge their imprisonment.

In that decision, a federal district judge, John D. Bates, ruled that three detainees at Bagram had the same legal rights that the Supreme Court last year granted to prisoners held at Guantánamo Bay because they were captured outside Afghanistan and taken to Bagram, where they have been held for more than six years without trials.

The two Yemenis and a Tunisian want a civilian judge to review the evidence against them and order their release, under the constitutional right of habeas corpus.

Chip Pitts supports their position. He told us,“ Judge Bates’ decision laudably made that distinction and, rather than fight it, the Obama administration should take the opportunity to restore sensible and moral rules in keeping with nearly a millennium of legal evolution. These would recognize that civilians have a right to habeas corpus, that combatants on true battlefield situations have a right to article V hearings under the Geneva Conventions, and that places like Bagram shouldn’t be manipulated to simply form new Guantanamos or law-free zones.”

Even more crucially, the judges’ rulings were allowing justice to be seen to be done, unlike the secretive interagency Task Force established by Barack Obama on his second day in office, whose deliberations are, sadly, as inscrutable as those of Obama’s predecessor, even though the Task Force has at least taken the time to consult with lawyers and other experts.

As I recently reported in a series of three articles (here, here and here), despite persistent obstruction from the Justice Department, where Bush-era officials have been behaving as though Dick Cheney is still breathing down their necks, judges had, by the end of July, reviewed 33 cases, and in 28 of those had ruled that the government had failed to establish, “by a preponderance of the evidence,” that it was justified in holding the men.

The judges concluded that, amongst other failings, the government was relying on information provided by dubious informers, on multiple levels of hearsay that failed to stand up to outside scrutiny, and on a supposed “mosaic” of evidence from various sources that was also unconvincing.

Nevertheless, although these rulings confirmed what those, like myself, who have been studying Guantánamo in depth for many years, have always maintained — that the majority of the prisoners are either innocent men seized for bounty payments (or through the incompetence of U.S. forces and other government agencies) or low-level Taliban foot soldiers recruited to help the Taliban defeat Afghanistan’s Northern Alliance in an inter-Muslim civil war that had nothing to do with al-Qaeda or the 9/11 attacks — the courts still face a number of peculiar problems.

These problems have arisen not only because almost all of the government’s supposed evidence consists of the inherently dubious statements of informers, of multiple levels of hearsay and of feeble “mosaics” of intelligence (as mentioned above), but also because when the Supreme Court granted the prisoners constitutionally guaranteed habeas corpus rights in June 2008, the justices failed to provide a clear definition of the extent to which prisoners were required to be involved in al-Qaeda and/or the Taliban to have their habeas appeals refused.

The “gossamer thin” case against Adham Mohammed Ali Awad

The resultant confusion was on full display in August, when three rulings were made. In the first, on August 12 (PDF), Judge James Robertson denied the habeas appeal of Adham Mohammed Ali Awad, a Yemeni prisoner, even though he conceded that “The case against Awad is gossamer thin,” and added, “The evidence is of a kind fit only for these unique proceedings and has very little weight.”

This was Robertson’s first habeas ruling, and in the hands of another judge, the ruling may well have tipped the other way. Certainly, the case was as “gossamer thin” as Robertson declared. Awad, who was just 19 years old at the time, was seized in Mirwais Hospital in Kandahar, Afghanistan in late 2001. According to his own account, he had “traveled to Afghanistan in mid-September 2001 in order to visit another Muslim country for a few months,” but in early November 2001 “was injured and knocked unconscious during an air raid while walking through a market in Kandahar.”

When he woke up in the hospital, he said, he discovered that he had lost his right foot, “that he was heavily medicated, floated in an out of consciousness, slept constantly, and could barely sit up.” He added that he “remained in this condition until his capture.”

Over the long years of his detention, as I explained in a profile of Awad last year, the U.S. authorities have claimed that he “stated he went to Afghanistan to become a fighter,” have suggested that he received injuries “in a two-car collision, involving ten individuals, while trying to avoid coalition air strikes,” and have also claimed that he, “along with seven other Arabs suspected of being al-Qaeda, were reportedly armed with weapons and used a hospital as a safe haven to elude coalition forces.”

These allegations, which surfaced in the Unclassified Summary of Evidence during Awad’s Combatant Status Review Tribunal at Guantánamo in 2004, formed the basis of the government’s case in court, even though, by 2006, in a review board at Guantánamo, the authorities had dropped all mention of the car crash, Awad’s supposed al-Qaeda associates, and his involvement in the siege, and, instead, suggested only that he was “captured on 2 November 2001 when he was injured near the airport in Kandahar.”

Judge Robertson perceived that Awad’s case “relie[d] mostly on weaknesses and holes in the government’s evidence,” which, as noted above, he was swift to condemn for its “gossamer thin” nature, but although he noted that the government “relie[d] mostly on newspaper articles” for background information about the hospital siege, which took place from early December to late January and ended with the deaths of the seven al-Qaeda fighters, and although he gave “no weight” to the “only first hand evidence offered by the government” — an interview with a man (whose name was redacted), who “claimed that he led the group that had taken Awad into custody”, whose report he dismissed as “internally inconsistent” and “completely unreliable” — he nevertheless concluded that “it appears more likely than not that Awad was, for some period of time, ‘part of’ al-Qaeda.”

To reach this conclusion, Judge Robertson was required to accept the government’s supposed evidence that Awad had attended Osama bin Laden’s Tarnak Farms training camp, an allegation that was based on a variation of his name, “Waqas” (he was sometimes listed by the Pentagon as Waqas Mohammed Ali Awad), being found on a list associated with the camp.

Although Judge Robertson refused to accept the government’s claim that Awad trained at the camp, finding it to be “unsupported,” noting, “we do not know the purpose of the list or when it was written,” and adding that the translator “claimed only that it was ‘possibly’ a list of trainees,” he returned to the allegations of Awad’s presence at Tarnak Farms to substantiate his conclusion that “it appears more likely than not that Awad was, for some period of time, ‘part of’ al-Qaeda.”

He noted that the names of the other men killed in the siege and Awad’s purported alias, “Waqas,” were closely grouped together on the list, and inferred from statements provided by another man who was present in the hospital and was also taken to Guantánamo (a Saudi released in 2007) that Awad and “Waqas” were one and the same.

Missing throughout all this analysis was any reflection on whether it was true that Awad only arrived in Afghanistan in mid-September 2001, and if, therefore, it was likely that he would have been immediately recruited for training at an advanced facility in the few weeks before the US-led invasion began, which strikes me as close to impossible. Also missing was any recognition that, as the government claimed in 2006, Awad was seized before the siege began, or, if that was a typographical error (as was indicated in court), that he was injured on Dec. 2, when the siege began, and that he was booted out of the hospital by the al-Qaeda fighters inside (or, as the government put it, “Awad’s comrades gave him up because they could not care for his severely injured [redacted]“).

Even with the government’s spin, there is something suspicious about would-be al-Qaeda martyrs sending one of their own to be captured, rather than staying and being martyred instead, but rather than examining these questions, Judge Robertson ruled that “At the very least Awad’s confessed reasons for traveling to Afghanistan and the correlation of names on the list [redacted] clearly tied to al-Qaeda make it more likely than not that he knew the al-Qaeda fighters at the hospital and joined them in the barricade.”

Quite where this leaves Awad is unknown, as the government does not seem to have enough evidence for a trial, and may, therefore, consider him a suitable candidate for its proposal to legislate for new powers of “indefinite detention,” to be reviewed by Congress and judges, which are supposed to provide an acceptable veneer to what is nothing more than a continuation of the Bush administration’s despised policies.

To this end, what may disappoint Awad the most is that, although Judge Robertson described him as a “marginally literate” young man, who “has spent more than seven of his twenty-six years — since he was a teenager — in American custody,” and, moreover, stated, “It seems ludicrous to believe that he poses a security threat now,” he added, limply, “but that is not for me to decide.”

In doing so, he ignored an earlier ruling (PDF), in which Judge Ellen Segan Huvelle noted that the Authorization for Use of Military Force (the legislation passed in the week after 9/11 which authorized the President “to use all necessary and appropriate force” against those “he determines” to have been involved in any way in the 9/11 attacks) “does not authorize the detention of individuals beyond that which is necessary to prevent those individuals from rejoining battle,” and ignored another ruling, in the case of a Syrian prisoner, Abdul Rahim al-Ginco, in which Judge Richard Leon ruled that whatever relationship al-Ginco may have had with al-Qaeda was “utterly destroyed.”

In al-Ginco’s case, this was because he had been tortured by al-Qaeda as a spy, but it was also noteworthy that Judge Leon stated that al-Ginco’s prior experience of al-Qaeda — “five days at a guest house in Kabul combined with eighteen days at a training camp — does not add up to a longstanding bond of brotherhood.”

Instead, however, Judge Robertson raised and dismissed a little-voiced question — whether it is appropriate to continue holding men who were seized in connection with a specific conflict (the overthrow of the Taliban and the installation of a new government, which came to an end years ago) — by stating, “Combat operations in Afghanistan continue to this day and — in my view — the President’s ‘authority to detain for the duration of the relevant conflict’ which is ‘based on long-standing law-of-war principles’ has yet to ‘unravel.’”

Mohammed al-Adahi and the al-Qaeda mirage

One judge who may have dealt more robustly with the “gossamer thin” evidence in the case of Adham Mohammed Ali Aawad is Judge Gladys Kessler, who, on August 21, granted the habeas appeal of Mohammed al-Adahi, a Yemeni who was 39 years old when he was seized on a bus in Pakistan (PDF). I described the broad outline of al-Adahi’s story in my book The Guantánamo Files as follows:

Married with two children, al-Adahi had never left the Yemen until August 2001, when he took a vacation from the oil company where he had worked for 21 years to accompany his sister to meet her husband … As he told his tribunal, “In Muslim society, a woman does not travel by herself.” After flying to Karachi, they traveled to Kandahar, where his brother-in-law was living. Al-Adahi stayed in Afghanistan for a month, “to ease his sister’s transition to life in Afghanistan,” and then made his way back to Pakistan, where he was arrested by soldiers while traveling on a bus. “They were capturing everybody with Arabic features,” he said. “I gave them my passport and that shows that I’m an Arab. They said, ‘why don’t you follow us, we need you at the Center.’ From that point on they brought us over here.”

However, while this was a fair précis, the government believed that it could establish a case that al-Adahi was actually a member of al-Qaeda, for a number of reasons that appeared, on the surface at least, to be plausible. As Judge Kessler explained, “There is no question that the record fully supports the Government’s allegation that Petitioner had close familial ties to prominent members of the jihad community in Afghanistan.”

The brother-in-law, it appears, was “a prominent man in Kandahar,” who had fought the Russians in Afghanistan, and Judge Kessler also noted that it was “undisputed” that Osama bin Laden “hosted and attended [the] wedding reception in Kandahar,” that al-Adahi “was briefly introduced to bin Laden,” and that “A few days later, al-Adahi met bin Laden again and the two chatted briefly about religious matters in Yemen.”

However, Judge Kessler refused to accept the government’s contention that these familial ties and the two brief meetings with bin Laden proved that al-Adahi “was part of the inner circle of the enemy organization al-Qaeda,” and accepted instead that there was no reason to doubt that al-Adahi’s visit was, as he stated, to accompany his sister to her wedding (and also to receive medical treatment for a back problem). She noted also that he had not tried to hide the fact that he had met bin Laden, and that he had, in addition, stated that it was “common for visitors to Kandahar” to do so.

As in May, when she granted the habeas appeal of another Yemeni, Alla Ali Bin Ali Ahmed, Judge Kessler had serious doubts about the manner in which the government established its case, which focused primarily on its claim that its various allegations should be considered as part of a “mosaic” of intelligence, to be viewed as a whole, rather than being examined in isolation.

Dismissing this approach, she stated that, although she understood that “use of this approach is a common and well-established mode of analysis in the intelligence community … at this point in this long, drawn-out litigation the Court’s obligation is to make findings of fact and conclusions of law which satisfy appropriate and relevant legal standards as to whether the Government has proven by a preponderance of the evidence that the Petitioner is justifiably detained.”

She proceeded to stress that “the mosaic theory is only as persuasive as the tiles which compose it and the glue which binds it together,” and that, “if the individual pieces of a mosaic are inherently flawed or do not fit together, then the mosaic will split apart.” Having dealt with the government’s first “tile,” she methodically dismantled the others, refuting a claim that al-Adahi had “stayed at al-Qaeda and/or Taliban guesthouses during his stay in Afghanistan,” and demolishing the government’s “central accusation”: that al-Adahi’s brief attendance at al-Farouq (the main training camp for Arabs, associated with Osama bin Laden in the years before 9/11) helped to confirm that he occupied “some sort of ’structured’ role in the ‘hierarchy’ of the enemy force.”

Noting his claim that he “pursued training at al-Farouq to satisfy ‘curiosity’ about jihad, and because he found himself in Afghanistan with idle time,” she took particular exception to the government’s claim because, “After seven to ten days at al-Farouq, the camp leaders expelled al-Adahi for failing to comply with the rules.”

Referring, incredibly, to the case of Abdul Rahim al-Ginco, the Syrian who was tortured by al-Qaeda (and whose case the Justice Department had pursued in the habeas courts until it was thoroughly humiliated by Judge Richard Leon in June), the government’s lawyers attempted to claim that, because al-Adahi was not imprisoned and tortured as a spy after he was expelled (like al-Ginco), this proved that he was being given preferential treatment because of his ties to al-Qaeda.

However, Judge Kessler concluded instead that it was more likely that he “was being protected by a concerned family member” with considerable influence, and that “it most certainly is not affirmative evidence that al-Adahi embraced al-Qaeda, accepted its philosophy, and endorsed its terrorist activities.”

She was also dismissive of an allied claim — that al-Adahi was an instructor at al-Farouq in February 2000 — noting that the only source for this allegation was another prisoner at Guantánamo, for whom “the record contains evidence that [he] suffered from ’serious psychological issues,’” and dismissed another claim — that al-Adahi was a bodyguard for bin Laden — by pointing out that this claim had been made by another prisoner who “suffers from serious credibility problems that undermine the reliability of his statements.”

It seems probable, from references to a “report of torture by the Taliban” in the case of this witness, that he was Abdul Rahim al-Ginco, who, as Judge Kessler noted, admitted in August 2005 that he had “lied in the past.” She also noted that “interrogators had expressed concern that he was being manipulated by another detainee,” and quoted from a report stating that “before being placed next to that detainee [he] had never made any of the claims that he made to interrogators, including the accusation against al-Adahi.”

With the bulk of the government’s claims dismissed, it remained only for Judge Kessler to destroy the rest of the “mosaic” by noting that, with reference to the rest of al-Adahi’s time in Afghanistan after being expelled from al-Farouq, it was “only speculation” on the part of the government that injuries he received to his arm and leg in Kandahar were the result of combat, and not, as he stated, because of a motorcycle accident.

She also pointed out that, although the government attempted to pin “associational evidence” of militancy on a claim that al-Adahi “was captured while traveling in the company of Taliban fighters” on a bus in Pakistan, the only source for this was something al-Adahi himself had been told after his capture, when he “heard that there were members of the Taliban on the bus.”

Noting, in addition, that he was “unarmed” at the time of his capture, she concluded that “He appeared to be attempting to escape the chaos of that time by any means he could,” and granted his habeas appeal (although, as with all the cases of prisoners whose habeas appeals have been granted, the ruling provides no guarantee that he will actually be released).

Fawzi al-Odah: the Kuwaiti who trained for one day

On August 24, the government secured another shallow victory when Judge Colleen Kollar-Kotelly denied the habeas petition of Fawzi al-Odah, a Kuwaiti prisoner, agreeing with the government that it was “more likely than not” that he “became part of Taliban and al-Qaeda forces in Afghanistan” (PDF). Judge Kollar-Kotelly’s ruling was based on a dubious assemblage of information that relied more on inconsistencies in al-Odah’s account of his activities than it did on anything resembling concrete evidence, as she herself admitted, when she wrote that there were “significant reasons why the Government’s proffered evidence may not be accurate or authentic.”

She explained that some of it was produced “in circumstances that have not allowed the Government to ascertain its chain of custody, nor in many instances even to produce information about the origins of the evidence,” that other evidence was “based on so-called ‘unfinished intelligence,’ information that has not been subject to each of the five steps in the intelligence cycle (planning, collection, processing, analysis and production, and dissemination),” and that other evidence was “based on multiple layers of hearsay (which inherently raised questions about reliability), or is based on reports of interrogations (often conducted through a translator) where translation or transcription mistakes may occur.”

The basic facts of the case, as I explained in an article for the BBC’s website in December 2007, are as follows. Al-Odah, a 24-year old primary school teacher, whose father, a retired air force pilot, fought with US forces during the Gulf War in 1991,

took a short holiday from work and traveled to Afghanistan in August 2001 to teach the Koran and provide humanitarian aid. This was something he had done before, in other countries, and his family had had a history of providing humanitarian aid, establishing libraries and wells in various countries in Africa.

After establishing contact with the Taliban, which he said “was necessary because that was the government in Afghanistan at that time,” Mr. Odah said he had been “touring the schools and visiting families,” teaching the Koran and handing out money, until his activities had been curtailed following 9/11.

He said that in Kandahar the Taliban representative “told me that was a dangerous place because it was the capital for the Taliban,” and had advised him to go to Logar, in the east of the country, where he had stayed with a family for a month, and left his passport and belongings for safekeeping. “If the Afghans saw I had a passport indicating I was an Arab, and they saw the money and the camera I had, I would have been killed,” he added.

He had then moved to Jalalabad, where he had stayed with another family, who had given him an AK-47 assault rifle to protect himself, Mr. Odah said. He had then joined other people crossing the mountains to Pakistan, where he had handed himself in to the border guards, he added. Mr. Odah said he expected to be escorted to the Kuwaiti embassy, but had instead been handed over to US forces.

In dissecting al-Odah’s story, Judge Kollar-Kotelly took exception to apparent inconsistencies in his account of his journey to Afghanistan, suggestions that he had lied about his plans to teach, and about the length of time he intended to stay. She concluded, by comparing his route — to Dubai, and then to Karachi, Quetta, Spin Boldak and Kandahar — with the same route taken by jihadists that the record “supports a reasonable inference that al-Odah may have also been traveling to Afghanistan to engage in jihad, and not to teach the poor and needy for two weeks.”

She followed up by casting doubts on his claim that he innocently “sought to contact a Taliban official upon reaching Afghanistan and that he subsequently moved around the country at the direction of this official,” and on his explanation that he visited a training camp “supervised by the Taliban, where “he took one day of training on an AK-47 rifle.” Following the government’s lead, she suggested that it was “more likely than not” that the camp was in fact al-Farouq, and that al-Odah arrived there on September 10, 2001, the day before the 9/11 attacks, when the camp was closed down.

She also took exception to al-Odah’s apparent inability to explain why he had not left Afghanistan after the 9/11 attacks, why there was at least a month’s gap in his account of what happened afterwards, and why, three months after the attacks, he was captured, armed with an AK-47, having crossed the border into Pakistan from the Tora Bora region (where al-Qaeda and the Taliban had been engaged in combat with Afghan and US forces), in the company of a group of armed men who, according to “credible evidence” provided by the government, included one man “who had substantial ties to al-Qaeda.”

To be fair, it was understandable that Judge Kollar-Kotelly drew the inferences she did from the information provided, as her summing up made clear, when she explained that al-Odah “has admitted that he sought to meet with a Taliban official upon his arrival in Afghanistan; that he was subsequently brought by a Taliban official to a Taliban-operated training camp near Kandahar, Afghanistan; that he took one day of training with an AK-47 at this camp: that the Taliban official sent him to stay with an associate in Logar, Afghanistan, after September 11, 2001; that he surrendered his passport and other possessions to this individual; that he met with individuals who were armed and appeared to be fighters; that he accepted an AK-47 from these individuals; and that he traveled with his AK-47 into the Tora Bora mountains, remained there during the battle of Tora Bora, and was captured shortly thereafter by border guards while still carrying his AK-47.”

From this outline of events, the government certainly had a stronger case than it did with Adham Mohammed Ali Awad, but even if this analysis is correct, the end result is that, nearly eight years after the 9/11 attacks, the United States is still asserting that it has the right to hold a young man who spent just one day at a training camp, who did not flee Afghanistan after the 9/11 attacks (perhaps because he feared reprisals if he was found escaping), who traveled with other men to Kabul, and then to Logar and then to Tora Bora and his eventual capture, with no evidence that he ever used the weapon he was given, and no evidence that his training involved anything more than firing a few rounds from an AK-47 in a practice session.

The long shadow of Salim Hamdan’s freedom

Back in January, when Judge Leon refused the habeas appeal of Ghaleb al-Bihani, a Yemeni who had worked as a cook for Arab forces supporting the Taliban, I made a comparison with the case of another prisoner, Salim Hamdan, which demonstrated to me that, although justice was finally within reach for some of the prisoners at Guantánamo, seven years after the prison opened, it was both farcical and unjust that Hamdan, a man who had worked as a driver for Osama bin Laden, had been tried in a Military Commission in which he was convicted of material support for terrorism, had served a five-month sentence delivered by a U.S. military jury, and was now a free man in Yemen, while al-Bihani, who had never even met bin Laden, and who had, instead, worked as a cook before the 9/11 attacks and had subsequently failed to teleport himself out of the country after the US-led invasion began, continued to languish in Guantánamo, with no end to his detention in sight.

As the eighth anniversary of the 9/11 attacks approaches, I, like all those who oppose Guantánamo and everything it stands for, still hope that the small number of prisoners involved in the attacks, or in other terrorist attacks against the U.S., can be brought to justice, but I fail to see how rulings like those delivered last month in the cases of Adham Mohammed Ali Awad and Fawzi al-Odah contribute to that end.

I believe that, with just four months to go until President Obama’s deadline for closing Guantánamo expires, all concerned would do well to direct their attention towards the few dozen prisoners at Guantánamo who are alleged to have been directly involved in terrorism, and to stop trying to defend the detentions of all the other men still held; men who, at best, were foot soldiers in a specific conflict that, in contrast to Judge Robertson’s words, came to an end no later than November 3, 2004, when Hamid Karzai was elected as the President of post-Taliban Afghanistan.

When Salim Hamdan was freed from Guantánamo, I wrote that his release spelled the end of the Bush administration’s justification for holding prisoners who had no meaningful connection to al-Qaeda or international terrorism. Ten months on, I stand by those words, and note that, although judges have now granted the habeas appeals of 29 of the 36 prisoners whose cases they have considered, nothing about the cases of the other seven men prevents Hamdan’s freedom from casting a longer and longer shadow over their continued detention.

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.