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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

These are meant to be show trials, part of an overarching plan of “exploitation” of prisoners, which includes, besides a misguided attempt by some to gain intelligence data, the inducement of false confessions and the recruitment of informants via torture. The aim behind all this is political: to mobilize the U.S. population for imperialist war adventures abroad, and political repression and economic austerity at home.

Holder claims he wanted civilian trials that would “prove the defendants’ guilt while adhering to the bedrock traditions and values of our laws.” The Attorney General blamed Congress for passing restrictions on bringing Guantanamo prisoners to the United States for making civilian trials inside the United States impossible. Marcy Wheeler has noted that the Congressional restrictions related to the Department of Defense, not the Department of Justice, and there is plenty of reason to believe the Obama administration could have pressed politicians on this issue, but chose not to. (Others see it differently.)

Human rights organizations have responded with dismay, if not outrage. Center for Constitutional Rights, whose attorneys have been active in the legal defense of a number of Guantanamo prisoners, stated, “The announcement underscores the fact that decisions about whether to try detainees in federal court or by military commission are purely political. The decision is clearly driven not by the nature of the alleged offense, or where and when it was committed, but by the unpopularity of the detainee and the political culture in Washington.” CCR also compared the precedent-setting behavior to “Egypt’s apparent plans to use military trials for protesters at Tahir Square.”

Human Rights First spokesperson Daphne Eviatar said, “Decisions on where to prosecute suspected terrorists should be made based on careful legal analysis, not on politics. This purely political decision risks making a second-class justice system a permanent feature U.S. national security policy – a mistake that flies in the face of core American values and would undermine U.S. standing around the world.”

Most organizations stressed the fact that this was an about-face for the Obama administration. Indeed, one of the oldest human rights organizations in the United States, Human Rights Watch, called the decision a “blow to justice.” HRW Executive Director Kenneth Roth said, “The military commissions system is flawed beyond repair. By resurrecting this failed Bush administration idea, President Obama is backtracking dangerously on his reform agenda.”

The National Association of Criminal Defense Lawyers statement concentrated on the faults of the military commissions themselves, headlining their press release, “At Guantanamo, “Detainees Are Presumed Guilty”:

“Despite some cosmetic changes since the Bush-era commissions, the commission rules still permit the government to introduce secret evidence, hearsay and statements obtained through coercion,” said the association’s Executive Director, Norman Reimer. “NACDL maintains that the rules and procedures for these commission trials raise serious questions about the government’s commitment to constitutional principles upon which our country was founded. “

Anthony Romero, Executive Director of the ACLU, echoed this today when he called the military commissions “rife with constitutional and procedural problems,” noting the outstanding cases “are sure to be subject to continuous legal challenges and delays, and their outcomes will not be seen as legitimate.”

The Origins of the Military Commissions

CCR, HRF, HRW, and NACDL are all correct, so far as they go. It is evident to many observers that only peculiar military exigency, backed by facts, could allow for military tribunals, as the Supreme Court’s 2006 Hamden decision made clear. It is a matter of historical record that the Bush-era military commissions policy, adopted by President Barack Obama, was initially pushed by former CIA employees William Barr and David Addington, with the encouragement of former Vice President Dick Cheney, along with other “War Council” participants John Yoo, Defense Department counsel under Donald Rumsfeld, William Haynes, and Bush lawyers Alberto Gonzales and Timothy Flanigan.

At the same time the military commissions proposal was initiated, via a military order by Bush, the Bush administration was stripping detainees of Geneva Conventions protections, as well as implementing a program of torture, with Haynes soliciting the Pentagon’s Joint Personnel Recovery Agency (JPRA) as early as December 2001 for techniques used in the “exploitation” of prisoners.

In a recent article by Jason Leopold and Jeffrey Kaye, it was shown that the JPRA program that was “reverse-engineered” was Survival, Evasion, Resistance, and Escape (SERE) course SV-91, “Special Survival for Special Mission Units,” whose mission was to train U.S. military and intelligence personnel to withstand torture meant to “exploit” them for enemy purposes. Those purposes went far beyond the gathering of intelligence. As then-SERE psychologist Bruce Jessen, who was later to work as a contract psychologist and interrogator for the CIA beginning in 2002, noted in notes for SV-91 written in 1989:

“From the moment you are detained (if some kind of exploitation is your Detainer’s goal) everything your Detainer does will be contrived to bring about these factors: CONTROL, DEPENDENCY, COMPLIANCE AND COOPERATION,” Jessen wrote. “Your detainer will work to take away your sense of control. This will be done mostly by removing external control (i.e., sleep, food, communication, personal routines etc. )…Your detainer wants you to feel ‘EVERYTHING’ is dependent on him, from the smallest detail, (food, sleep, human interaction), to your release or your very life … Your detainer wants you to comply with everything he wishes. He will attempt to make everything from personal comfort to your release unavoidably connected to compliance in your mind.”

Jessen wrote that cooperation is the “end goal” of the detainer, who wants the detainee “to see that [the detainer] has ‘total’ control of you because you are completely dependent on him, and thus you must comply with his wishes. Therefore, it is absolutely inevitable that you must cooperate with him in some way (propaganda, special favors, confession, etc.).”

A former colleague of Dr. Jessen, and along with him a founder of the SV-91 SERE class, former Captain Michael Kearns told Leopold and Kaye:

“What I think is important to note, as an ex-SERE Resistance to Interrogation instructor, is the focus of Jessen’s instruction. It is exploitation, not specifically interrogation. And this is not a picayune issue, because if one were to ‘reverse-engineer’ a course on resistance to exploitation then what one would get is a plan to exploit prisoners, not interrogate them. The CIA/DoD torture program appears to have the same goals as the terrorist organizations or enemy governments for which SV-91 and other SERE courses were created to defend against: the full exploitation of the prisoner in his intelligence, propaganda, or other needs held by the detaining power, such as the recruitment of informers and double agents. Those aspects of the US detainee program have not generally been discussed as part of the torture story in the American press.”

The Stalinist governments of the USSR and East Europe used to make a great practice of show trials, one of the most famous being the trial of Hungarian Cardinal Mindszenty. Arthur Koestler’s famous book Darkness at Noon is about the show trial and confession of an “old Bolshevik” under Stalin’s regime. Such show trials still occur in many parts of the world, from China and Vietnam, to Indonesia, Burma, Iran, Pakistan, Zimbabwe, and the list could go on and on.

That list now includes the United States, where most recently, former child prisoner Omar Khadr was tried in a military commission, pleading guilty with a coerced confession, after years of torture and imprisonment in solitary confinement, his penalty phase of the military tribunal amounting to a show trial, complete with psychiatric “expert” testimony about Khadr’s supposed propensity for “terrorism.” The result? A 40-year sentence for the young man who never spent a free day as an adult, part of a staged deal with the U.S. military prosecutors, who presumably will release Khadr to Canadian authorities in a year or so, where he will continue to be imprisoned, pending any appeals there. But the penalty “trial” got a lot of press, and the U.S. was able to garner a propaganda “victory.”

Without Accountability, Whither America?

The United States is only a small step away from some kind of dictatorship. This may sound like hyperbole to some, but the lack of a clear and strong opposition to military and intelligence community institutional pressures has driven the Obama administration to the right even of the Bush administration on matters of secrecy and executive power. Proposals for “terrorist” or “national security” courts continue to be seriously considered, while the public uproar over the use of torture on prisoners has died down ever since Barack Obama told his Democratic Party followers not to “look back,” and made clear that accountability for war crimes would not happen on his watch. Meanwhile, tremendous inroads are made on privacy rights, while surveillance of private citizens, strip searches at airports, seizures of personal computers, and gathering of personal data from emails and phone calls are now everyday occurrences.

As a result, Obama has been the active creature of militarist forces within the government, and on point after point, has given way to lobbying by the military and intelligence establishments, themselves beholden to a power elite that holds the economic reins of the country, from oil to finance, in their hands. Obama’s role is most evident in his recent military actions against Libya.

The courts, too, have stepped back from their gesture towards judicial independence under Bush, with the Supreme Court ruling today that it would not hear three Guantánamo detainee cases, appeals on rejected habeas reviews regarding Fawzi Khalid Abdullah Fahad Al Odah, Ghaleb Nassar Al-Bihani and Adham Mohammed Ali Awad. While the cases concerned issues surrounding use of hearsay, other evidentiary standards, the role of international law, and the right to a meaningful challenge to detention, the Court gave no explanation for denial of cert. Courthouse News noted, by the way, that new Justice Elena Kagan “does not appear to have recused herself from consideration of two of the cases because of her prior work as U.S. Solicitor General.”

Meanwhile, some anti-torture activists are trying to pursue accountability the best they can, going after the licensure status of mental health professionals who participated in the Bush torture regime. Complaints against former Guantanamo Chief Psychologist Larry James and CIA contract interrogator James Mitchell have not gotten very far, with their cases dismissed.

Another case against former Major John Leso, a psychologist working for the DoD Behavioral Science Consultation Team at Guantanamo, who in 2002 helped write an interrogation protocol that relied in part on SERE “reverse-engineered” torture techniques, was also dismissed, but according to Raw Story, this Tuesday the Center for Justice and Accountability (CJA) and the New York Civil Liberties Union (NYCLU) will ask the New York Supreme Court to reconsider the decision of the New York State Office of Professional Discipline (OPD) not to investigate the misconduct complaint against Leso.

The issue of the military commissions must be considered in the context of its embedded existence as part of a full-scale exploitation plan upon prisoners, implemented as part of a war policy with strong imperialist ambitions, initiated by the United States in the aftermath of 9/11. The agitation for such a war preceded 9/11. The terrorist attack set lose this militarist policy, whose appurtenances — military tribunals, exploitation of prisoners, psychological warfare, secret prisons, false confessions, experimental torture programs, and unchecked executive power — threaten to end the semblance of democracy in the United States once and for all.

Originally published on Firedoglake.

Jeffrey Kaye is a psychologist living in Northern California who writes regularly on torture and other subjects for The Public Record, Truthout and Firedoglake. He also maintains a personal blog, Invictus. His email address is sfpsych at gmail dot com.

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

Long ago, individuals from around the world came to America to escape kings and monarchs that had the power to treat people with utter distain, sending their children to wars on a whim, and imprisoning people without charge or judicial review, sometimes for life.  For many, the behavior of these rulers became so intolerable that abandoning one’s home, friends, and family became preferable to continued suffering in lands where individual libery counted for nothing.

Today the United States finds itself in three official “conflicts” (Iraq, Afghanistan, and Libya), as well as several more unofficial “actions.”  As usual, our involvement is based upon faulty intelligence and lack of insight, driven by planners who still believe defeating an enemy army and throwing a nation into chaos will somehow make the world a better place.  In the Libyan conflict, for example, we seem to have little idea who we are supporting or what we will do once Colonel Gaddafi is eliminated.  Nonetheless, with the force of the United States behind them, these mysterious rebels may soon find themselves defining the course of Libya’s future.

So, what can our new desert rebel allies learn from America?  As evidenced by the United States’ close relationship with Saudi Arabia, Bahrain, and Yemen, the lesson has almost nothing to do with democracy.  In fact, so long as they remain friendly and helpful to the United States, their actual form of government (or treatment of their people) won’t really matter.

Perhaps our desert rebel allies will learn to establish a powerful executive branch, unchecked by legislative or judicial branches.  Or perhaps they will learn to conceal any information they find embarrassing, simply by declaring it a threat to national security.  These are certainly lessons the United States could teach by example.

Almost certainly, if they follow our example, our rebel allies will learn that mistreatment and permanently detaining foreign nationals without any form of due process is the new norm.  After all, at Guantanamo Bay, the United States is, even now, holding men in cages where they will likely stay for the rest of their lives, while inexperienced “new bosses” reinstate the ill-advised and inhumane policies of years past.  Meanwhile, the American public remains pleasantly disengaged, safe in their belief that, as citizens, such terrible treatment could never be visited upon them.

Recently, major newspapers reported President Obama had signed an executive order granting “more rights” to Guantanamo detainees.  Unfortunately, while the President did, in fact, sign an executive order, the new Guantanamo policy is virtually identical to the Bush administration’s discredited policy of secret review by mysterious people in a hidden location with no rules of evidence or meaningful standards of review.   Perhaps our rebel allies will learn not to bother devising new policies if they can simply repackage policies that have failed in the past?

Indefinite detention is the New-American notion that courts, trials, and evidence are antiquated concepts when viewed in the context of national security.  If the executive branch suspects you might be dangerous, you are condemned to life in a cage.  At the same time, the senior official overseeing America’s “military commissions” has issued a 26-page “protective order,” ensuring no lawyer (military or civilian) can establish or maintain a meaningful attorney-client relationship with those caged in Guantanamo.  After all, such relationships might lead to challenges against the legitimacy of imprisonment without trial.  And we wouldn’t want that.

Just think, if our new allies in Libya follow our lead, they may one day demonstrate what they have learned against us.  If so, we should take a moment to apologize to our children for the legacy they will endure, the very same legacy our ancestors tried so hard to protect us against.  Unfortunately, this time there will be no ship setting sail for a better life.

The views expressed in this article do not represent the views of the Department of Defense or the United States government. Lt. Col. Wingard is a military lawyer who represents Fayiz al-Kandari and has served for 26 years in the military. When not on active duty, he is a public defender in the city of Pittsburgh.

Neither was surprising, because the President announced in May 2009, during a major speech on national security at the National Archives, that the Military Commissions were back on the table, joining federal court trials as an option for trying those held at Guantánamo, and in that same speech he also announced that some prisoners would continue to be held indefinitely without charge or trial.

The return of the Military Commissions

Since then, Military Commissions already established under President Bush have proceeded to trial — or, in fact, to plea deals instead of a trial — in the cases of three prisoners: Ibrahim al-Qosi in July last year, Omar Khadr in October, and Noor Uthman Muhammed last month, and it seems probable that the trials of three other men recommended for trial by Military Commission in November 2009 and January 2010 by Attorney General Eric Holder will now proceed swiftly.

These men are: Abd al-Rahim al-Nashiri, a Saudi, and the alleged mastermind of the al-Qaeda attack on the USS Cole in 2000; Ahmed al-Darbi, a Saudi seized in Azerbaijan and accused of involvement in an unrealized plot to attack a ship in the Strait of Hormuz; and Obaidullah, an Afghan accused of playing a peripheral role in the insurgency against US forces in Afghanistan. All the cases have problems — al-Darbi’s, because of his detailed allegations that he was subjected to torture; Obaidullah’s, because he was a nobody involved in an insurgency, and did nothing that could remotely be described as a war crime; and al-Nashiri’s, in particular, because, after his capture in the UAE in the fall of 2002, he was rendered to secret CIA prisons in Thailand and Poland, where he was subjected to the torture technique known as waterboarding, a form of controlled drowning.

In the case of al-Darbi and Obaidullah, it seems probable that the administration will avoid, in one case, a torture-laced legal minefield, and in the other, a demonstration of how, embarrassingly, to equate the pursuit of terrorists with a legitimate insurgency, by reaching plea deals. However, it seems unlikely that anyone in a position of authority would want to strike plea deal with al-Nashiri, given the severity of his alleged crimes and his alleged role in al-Qaeda, and if this is the case then the authorities will not only be obliged to sidestep any mention of his torture, which may be difficult as it was covered in the CIA Inspector General’s report on torture in 2004, and al-Nashiri has also been granted “victim” status in an ongoing investigation of the CIA’s torture prison in Poland.

Just as significant is the fact that an actual trial — rather than a plea deal — runs the very real risk of exposing that the supposed war crimes included in the Military Commissions — conspiracy and providing material support to terrorism, for example — are not legitimate war crimes at all, but were, instead, invented by Congress in 2006 and maintained, despite high-level criticism by Obama administration officials, when a revived version of the Commissions was approved by Congress in the Military Commissions Act of 2009.

Beyond these difficulties, where Obama’s announcement breaks new ground is in opening up the probability that many of the other 30 prisoners still held who were recommended for trials by the Task Force will also be tried by Military Commission – – perhaps even Khalid Sheikh Mohammed and four other men accused of involvement in the 9/11 attacks. These men were put forward for federal court trials in November 2009, but the plans were shelved in the wake of a backlash by Republicans and members of Obama’s own party.

Personally, I think that the Military Commissions remain illegitimate, but given Congress’s refusal to allow any Guantánamo prisoners to be brought to the US mainland to face trials (which was included in a major military defense spending bill last December, and was a nakedly political move, as well as being blatantly unconstitutional), Military Commissions are, at present, the only option for trials available to the prisoners. Pragmatically, if these continue to involve plea deals in exchange for short sentences — and the administration honors those plea deals — then, despite being fundamentally flawed, they provide what may be the only way in which prisoners can ever leave Guantánamo.

To understand why this is the case, it is necessary to reflect on the fact that 89 of the remaining 172 prisoners were cleared for release by the Task Force, but are going nowhere either because they are Yemenis, and Obama issued a moratorium on the release of any of the 58 cleared Yemenis last January, after it was discovered that the failed Christmas Day plane bomber, Umar Farouk Abdulmutallab, had been recruited in Yemen, or because they cannot be repatriated because they face the risk of torture of other ill-treatment in their home countries. These 31 men cannot be resettled in the US, because of opposition by the President, by the D.C. Circuit Court, and by Congress, and it is uncertain if third countries will be prepared to offer them new homes. As a result, all 89 prisoners appear to have less chance of leaving Guantánamo than their fellow prisoners who reach plea deals in their trials by Military Commission, and can, as I have been explaining all year, legitimately be described as political prisoners.

The executive order establishing a periodic review of the cases of 47 men designated for indefinite detention without charge or trial

Also less fortunate than those facing trials by Military Commission are the 47 men designated for indefinite detention without charge or trial. The executive order formalizing their detention and providing for periodic reviews of their status, which was issued on March 7, was flagged up before Christmas, but was clearly on the cards from January 2010, when the Task Force submitted its report to the President, recommending that 48 of the remaining prisoners — one of the 48 died in Guantánamo last month — should continue to be held indefinitely without charge or trial, because “prosecution is not feasible in either federal court or a military commission.”

There are several problems with this proposal, of course — beyond their distressing reinforcement of the very basis on which George W. Bush established Guantánamo in the first place — not the least of which concerns the Task Force’s belief that these men can be regarded as dangerous without evidence that can be used to prove their case. As I explained in December:

The Task Force attempted to explain that “the principal obstacles to prosecution in the cases deemed infeasible by the Task Force typically did not stem from concerns over protecting sensitive sources or methods from disclosure, or concerns that the evidence against the detainees was tainted,” but its explanations were unconvincing. Behind claims that “the intelligence about them may be accurate and reliable,” even though it was gathered in dubious circumstances, and that, in many cases, “there are no witnesses who are available to testify in any proceedings against them,” lies a blunter truth, as I explained [in an analysis of the Task Force's report in June 2010]: “that the intelligence, and whatever witness availability there might be, are both tainted by the circumstances under which ‘the gathering of intelligence’ took place — the coercive interrogations, and in some cases the torture, of the prisoners themselves, or of their fellow prisoners.”

To demonstrate this, I referred to the 59 habeas petitions examined by judges in the District Court in Washington D.C., of which 38 have been won by the prisoners, noting:

[T]hese problems have been highlighted again and again by judges, with an objectivity that eluded the Task Force — as, for example, in the cases of Fouad al-Rabiah, a Kuwaiti put forward by President Bush for a trial by military commission, who was freed after a judge ruled that the entire case against him rested on a false narrative that he had come up with after torture and threats, and, to cite just two more examples, Alla Ali Bin Ali Ahmed, a Yemeni seized in a student guest house in Pakistan, and Mohammed El-Gharani, a Chadian national, who was just 14 when he was seized in a raid on a mosque in Pakistan. In both cases, they were freed after judges ruled that the government’s witnesses — the men’s fellow prisoners — were irredeemably unreliable, and were, if not subjected to violence, then bribed to produce false statements.

It is, therefore, rather disingenuous of the Task Force to claim that “the principal obstacle to prosecution” for these [47] men “typically did not come from … concerns that the evidence against the detainee[s] was tainted,” when, to be frank, the record is replete with examples proving the opposite.

Another problem is that the executive order establishes a review process for the 47 men, consisting of Periodic Review Boards (PRBs), which are remarkably similar to the review process established by the Bush administration — the Combatant Status Review Tribunals (CSRTs) — that the Supreme Court found inadequate when it granted the prisoners constitutionally guaranteed habeas corpus rights in June 2008.

As with the CSRTs, the men will be presented with an unclassified summary of the allegations against them, will be represented by a “personal representative” (not a lawyer), will be allowed to refute the charges against them (although without the means to do so), will be able to “call witnesses who are reasonably available,” and will also run up against classified evidence that they will not be allowed to see — although there is a provision for them to “receive a sufficient substitute or summary, rather than the underlying information,” if the government plans to rely on classified evidence (as it undoubtedly will, or trials would be going ahead in these cases).

Although I am reassured that, as the administration describes it, the executive order “is intended solely to establish, as a discretionary matter, a process to review on a periodic basis the executive branch’s continued, discretionary exercise of existing detention authority in individual cases,” and also that it “does not create any additional or separate source of detention authority,” and “does not affect the scope of detention authority under existing law,” it is disingenuous of the administration to follow up by stating, “Detainees at Guantánamo have the constitutional privilege of the writ of habeas corpus, and nothing in this order is intended to affect the jurisdiction of Federal courts to determine the legality of their detention.”

This is because, despite its reassurances, the administration has always behaved as though the habeas legislation is a distraction, and that it has only ever believed in the Task Force’s findings — hence its decision to pre-judge 48 men whose habeas petitions might have delivered different outcomes, obviating the need for executive review.

In addition, the executive order demonstrates another fundamental problem with the administration’s approach to Guantánamo — and one that has also eluded the District Court dealing with the men’s habeas petitions. This relates to the legislation that underpins the Guantánamo detentions in the  first place — the Authorization for Use of Military Force, passed by Congress the week after the 9/11 attacks, which authorized the President “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001,” or harbored them, but failed to distinguish between al-Qaeda (a terrorist group) and the Taliban (a government, however reviled).

As the habeas legislation has showed, the majority of the men who have lost their petitions are nothing more than foot soldiers for the Taliban, who had no knowledge of al-Qaeda’s international terrorist operations, and who should, as a result, have been held as prisoners of war protected by the Geneva Conventions.

Included in the 47 men designated for indefinite detention, these soldiers remain tainted by the administration’s claims that they are “too dangerous to release,” when the truth is that the AUMF remains the flawed foundation document of the “War on Terror,” and those held at Guantánamo should either be released (without delay), charged in connection with terrorist offenses (which are crimes and not “acts of war”), or redesignated as prisoners of war, who can be held until the end of hostilities.

This, however, would involve recognizing them as soldiers, and not as the kind of shadowy, ill-defined terrorist threats that were invoked so successfully by the Bush administration, and that Obama has done nothing to dispel. This refusal to tackle the foundational problems of Guantánamo not only continues to fuel hysteria in the United States about the soldiers held in Guantánamo, but has also led to a shameful indifference towards putting on trial the handful of people genuinely accused of involvement in acts of international terrorism (including the 9/11 attacks), even though bringing these men to justice ought to have been the purpose of the “War on Terror” all along.

Originally 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.

Ahmed Ghailani

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

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

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

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

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

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

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

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

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

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

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

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

Originally published on Cageprisoners.

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

Republican Representative Tom Rooney, a former military prosecutor, this week introduced a bill mandating that the detention facility at Guantanamo Bay, Cuba, “remains open indefinitely” and requiring that “individuals detained at the facility be tried only by Military Commission.”

But other former military prosecutors think Rooney’s position would be a mistake of epic proportions.

Rooney’s “Detainee Trials at Gitmo Act” would require all detainees currently held at Guantanamo Bay to be tried in the courtroom facility constructed at Guantanamo Bay.

In a statement, Rep. Rooney said, “Military commissions are fair and provide due process for the accused, but they also protect critical intelligence officials and evidence.

The Congressman, a former constitutional law professor at West Point, said, “Foreign terrorists should absolutely not receive the same rights and privileges as American citizens do.”

He added that the recent trial of Ahmed Khalfan Ghailani, who was acquitted on more than 280 counts, including murder, “highlights the flaws with the Administration’s strategy of giving detainees civilian trials.”

Ghailani, who was tried in Federal Court in downtown Manhattan, was convicted on one count of conspiracy and faces a mandatory 20-years-to-life sentence.

But Congressman Rooney believes that the “Constitutional and legal standards for evidence-gathering and prosecution in a civilian case are simply not adequate for the trial of an enemy combatant.”

He adds, “As a former military prosecutor, I strongly believe that trying detainees in military tribunals at Guantanamo Bay is the best way to hold terrorists accountable, keep them out of the United States, and prevent them from rejoining the fight.”

But other former military prosecutors take starkly different positions.

One of them is David Frakt, who, in 2008, challenged the role of chief prosecutor Brigadier General Thomas W. Hartmann in choosing his client, Mohammed Jawad, for trial. Frakt argued that Hartmann had “…exercised unlawful command influence. Challenging that unlawful influence, Frakt charged that the Prosecution had failed to release important records to the Defense, and that this showed that the process through which Jawad was charged was rushed and without proper preparation.

Frakt also claimed that Jawad had been subjected to: “…pointless and sadistic treatment [in a] bleak underworld of barbarism and cruelty, of anything goes, of torture.”

Frakt told The Public Record, “It is shameful that some members of Congress are trying to hamstring the President and Attorney General and substitute their judgment for that of the Executive Branch as to what is the appropriate place to try a criminal case, without any knowledge of the specific facts and circumstances of each case, or the evidence available.”

He said Rooney’s act “also shows the extreme hypocrisy of many members of Congress, who will claim one moment that the Military Commissions are virtually identical in all important respects to federal criminal courts and courts-martial, capable of providing full, fair trials consistent with American ideals of justice and due process, then insist on trials in military commissions for the sole reasons that they clearly believe that convictions are more likely to be obtained on tainted evidence in a military commission than in federal court.”

He added that the “protection of critical evidence is a massive red herring. The procedures in place in the Military Commissions to protect classified evidence are modeled on, and virtually identical to, the Classified Information Procedures Act in place in federal court.”

Frakt told us, “It is deeply insulting that members of Congress repeatedly refer to the Ghailani trial as some kind miscarriage of justice, casting aspersions not only on the jury that rendered the verdict after grappling with the evidence for several days, but on the entire justice system. The criticism of the Ghailani case is clearly premised upon a presumption of Ghailani’s guilt, not the presumption of innocence to which even detainees are entitled.”

He added, “It seems to be Rooney’s position that Ghailani must have been guilty, since why else would the Justice Department have charged him? It has apparently not occurred to this “former military prosecutor and Constitutional law professor” that the government might have overcharged Mr. Ghailani, or that their theory of the case was flawed, or that their evidence was insufficient.”

Frakt also noted that the Rooney bill, if passed, “would potentially prohibit some detainees from being tried at all.”

He explained: “There are very likely some detainees who have committed federal terrorism crimes, but who have not committed any war crimes. It is still an open question as to whether the appellate courts will allow crimes which have never been considered law of war offenses, such as material support to terrorism, to be tried in the military commissions. It is also still an open question whether the appellate courts will accept the spurious claim that the U.S. was in a war with al Qaeda for five years before 9/11. If the courts reject this theory, then there will be no available forum in which to try detainees for pre 9/11 terrorist acts.”

Frakt’s Guantanamo client, Mohamed Jawad, was called the “child soldier” because he was reportedly only 12 years old when he allegedly threw a hand grenade at an American soldier in Afghanistan, killing him.

In his trial, the military tribunal judge ruled that Jawad’s alleged confession to throwing a grenade was inadmissible since it had been obtained through coercion after Afghan authorities beat him and threatened to kill his family. He was ordered released after a successful petition for a writ of habeas corpus and in 2009 was returned to Afghanistan.

Another Military Commission veteran, Col. Morris Davis (Ret.), former chief prosecutor at Guantanamo and now executive director of the Crimes of War Project, noted that Rooney “introduced the same bill a year ago in the 111th Congress where four percent of his colleagues joined as co-sponsors and it died in committee.”

He said Rooney’s “bad idea hasn’t gotten better with age. After more than nine years of failure since President Bush first tried to revive military commissions, and after a thorough trashing of our reputation as the world leader in justice, perhaps we should start upholding the rule of law rather than creating novel arguments to get around it. We used to set the highest standard, now we try to see how low we can go. We’re Americans. We’re better than that.”

Another aspect of the Military Commission debate was highlighted by Andrea Prasow, Senior Counter Terrorism Counsel for Human Rights Watch

She told The Public Record, “”Military Commissions are new and untested. They have handled only five cases, three of which were plea bargains. By contrast, Article III courts have a proven track-record for prosecuting terrorism suspects. The Military Commissions remain deeply flawed and any verdict rendered by them might ultimately be overturned by the Supreme Court. The victims of 9/11 deserve better than to see such important cases prosecuted in a defective legal system.”

And Chris Anders, ACLU Senior Legislative Counsel, injected a note of political realism into the issue. Noting that Rooney’s bill was introduced last year and went nowhere, he said it may have a brighter future now because of Republican control of the House of Representatives.

But he told The Public Record that the Rooney measure is merely the first of many focusing on Guantanamo and Military Commissions that are likely to be introduced in this session of congress.

Rooney, who was elected in 2008, represents Florida’s 16^th Congressional District, which stretches from the Gulf of Mexico to the Atlantic coast. Rooney won election with 60% of the vote.

He is a member of the House Armed Services Committee, the Committee on the Judiciary, and the Committee on Agriculture. He was selected to serve as a Republican Deputy Whip for the 112th Congress, the only second-term member to be tapped for this post.

Though not a member of the Tea Party caucus, he spoke at the South Florida Tea Party’s first rally on Tax Day in 2009.

Rooney spokesman Michael Mahaffey said, “Congressman Rooney is very supportive of the Tea Party Movement and its message of lower taxes, less government and more personal freedom.” He added, “He believes the strength of the Tea Party lies in its grass roots support and its leadership from the people, not from Washington.”

William Fisher, a regular contributor to The Public Record, has managed economic development programs for the U.S. State Department and the U.S. Agency for International Development in the Middle East, Latin America and elsewhere for the past 25 years and served in the administration of President John F. Kennedy. He reports on a wide-range of issues for numerous domestic and international newspapers and online journals. He blogs at The World According to Bill Fisher.

Instead, according to some of the nation’s most respected legal authorities, we are about to slither into the quicksand of a regressive judicial “system” designed, not to dispense justice, but to get convictions.

The Administration’s plans can only be characterized as a defeat. They come exactly two years after the President, on his second day in office, vowed to the American people that he would close the iconic prison at Guantanamo.

Since then, that objective has been immobilized by a perfect storm. The President’s Task Force assigned to review each detainee’s case found itself hog-tied by the Bush Administration’s sloppy housekeeping: case files were a shambles, incomplete and scattered throughout the government; before they could be read and assessed they had to be found and assembled. That took time not anticipated.

Then, a Federal judge ruled in the matter of the Uighers – Muslims from China – held at GITMO for years without charge or trial. These men had already been cleared for release – but where were they to go? They couldn’t be sent home to China, where they surely would face China’s merciless justice system. So the DOJ and the State Department worked overtime, trotting out all the blandishments and incentives only a superpower has to dispense in an effort to cajole countries to become Uighur hosts.

Amidst this genuine – and exhausting — effort, a Federal Judge took up the Uighurs’ case. Designated innocent, scheduled for release, and yet still imprisoned for years. The judge stopped just short of a heart attack when he ruled that the Uighurs should be brought to the United States for resettlement with families here that were awaiting them.

Predictably, the government appealed that decision, and the appeals court ruled that courts could not made immigration regulations; that was the job of the Department of Homeland Security.

But while the lower court decision was overturned, the tiger was out of the bag. Congress had picked up on the possibility that exonerated GITMO detainees would soon be running up and down the main streets of America, bumping into you at the Mall.

It didn’t take much for our courageous lawmakers – on both sides of the aisle – to show how much they appreciated Obama’s respect for the rule of law. In record time, they passed a bill stipulating that no Guantanamo detainee would be released inside the U.S. and mandating Obama to give Congress advance notice before moving a detainee to the U.S. for trial.

Trial. Oh yes, that was back in the days when civilian Federal trials for GITMO detainees were still on the table. Most legal experts, legal and human rights organizations, the entire Administration and at least a few in Congress, insisted that trials in Article Three courts were most likely to result in real justice.

The self-described mastermind of the 9/11 attacks, Khalid Sheikh Mohammed (KSM), was to be the first to be tried and his trial would take place in Federal Court in New York City (home of dozens of other terrorist trials). Mayor Bloomberg of New York was enthusiastic about all the attention and tourist dollars this trial would bring to his city. And he said so. But then he went quiet. For days nothing was heard from him. And the next time he surfaced, he was embraced by the New York City Congressional delegation, and he and they had taken a 180-degree turn. Federal trials in New York: Bad Idea.

This despite the fact that dozens of accused terrorists – including Zacarias Moussaoui, dubbed the “20th hijacker,” have been tried and convicted in downtown Manhattan. Moussaoui is now serving a life sentence at the supermax prison in Colorado.

But Obama was not to be easily deterred. While Congress and the administration’s critics were becoming increasing apoplectic about the prospect of meeting a terrorist in the men’s room of the U.S. Courthouse in Manhattan, the Obama team readied itself for its first trial of a GITMO detainee to be held in the Continental U.S.

It was not KSM, however. It was a man who would perhaps provide a dress rehearsal for a KSM trial later. His name was Ahmed Khalfan Ghailani, accused of participating in the 1998 bombings of American Embassies in East Africa.

After 41/2 days of deliberation, the jury cleared Ghailani of more than 280 counts, including the top charges of murder and murder conspiracy, and convicted him on one count: conspiracy.

He faces a mandatory 20-year-to-life sentence for the conviction.

Supporters of Federal trials for GITMO detainees noted that virtually no one noticed a terrorist trial in progress, and said the verdict vindicated the U.S. justice system; opponents pointed to the one-out-of-281-count conviction, and fanaticized about Ghailani on parole, enjoying breakfast at McDonalds.

New York Republican Rep. Pete King, who has bitterly opposed Federal trials, called the mixed verdict “a disgraceful miscarriage of justice.”

Congress sided with King and the trial’s many other opponents. It cut off funding for the transport of any GITMO detainee to the U.S. for any purpose whatever.

Ergo, the Administration is left with only bad options, and not many of those. It can forget about trials altogether. These prisoners will just make up part of the group that, regardless of any other factors, the Administration intends to hold indefinitely. It can continue to try to find countries to host those inmates cleared for release (the largest single group of these is from Yemen; and there is currently a ban on repatriating anyone to Yemen because of the recent reported Al Qaeda activity there). Or it can revert to the quaint system of justice fashioned by the George W. Bush Administration: the Military Commission.

That’s the road it is reportedly taking. And that news has furnished critics with a large, loud microphone.

Lawyers who are intimately familiar with the Military Commission system say it is not designed to produce justice; it is designed to produce convictions. They call it a second-class justice system.

Morris Davis, former chief prosecutor at Guantanamo Bay, and now executive director of the Crimes of War Project, told The Public Record, “In more than nine years since President Bush authorized military commissions, we’ve conducted a total of five trials and generated nothing but universal condemnation. We’re long past the question of whether we could do them to one of whether we should. Putting lipstick on this pig is not going to convince anyone that she’s been transformed into lady justice.”

Another GITMO veteran, Darrell J. Vandeveld, who resigned his appointment as a prosecutor before a Guantanamo military commission because of a serious ethical issue, told us, “Right after the President issued the order to close the prison, [it was clear that] nothing good will come out of Guantanamo for years. Nothing has been accomplished during this hiatus except to demonstrate that military commissions are inferior, deeply-flawed ‘courts,’ that have delivered, in the few cases tried, inferior justice and utterly inferior results. Ghailani will likely receive a life sentence; Omar Khadr will likely be a free man in less than two years. The prior administration’s politicization of the military is unprecedented, and, as we see, ruinous. The current administration is only rejoining this fin de siecle circus.”

David Frakt also has equally serious doubts about the legitimacy of the Military Commissions.

It was Frakt who, in 2008, challenged the role of chief prosecutor Brigadier General Thomas W. Hartmann in choosing his client, Mohammed Jawad, for trial.

Frakt argued that Hartmann had “…exercised unlawful command influence. Frakt also argued, during his challenge of Hartmann’s unlawful influence, that the Prosecution had failed to release important records to the Defense, and that this showed that the process through which Jawad was charged was rushed and without proper preparation.

Frakt argued that Jawad had been subjected to: “…pointless and sadistic treatment [in a] bleak underworld of barbarism and cruelty, of anything goes, of torture.”

Frakt told The Public Record, “The Administration’s plan to restart the flawed military commissions in Guantanamo demonstrates that they have caved in to the bullies in Congress who have used fearmongering and disinformation to preempt the best and most appropriate option for prosecution of the few real terrorists at Guantanamo — federal criminal trials.”

He continued: “The apparent willingness of the Administration to allow a detainee who was admittedly tortured to be prosecuted for crimes committed well before 9/11, under a theory that the U.S. was in a state of armed conflict (i.e. war) with al Qaeda since 1996, reveals how little has really changed in the current Administration’s approach from the predecessor administration.”

Frakt is now a professor at the Barry University law school.

He added, “Given that President Obama abandoned his campaign pledge to abolish the military commissions and opted to reform them, it is not surprising that the military commissions are resuming. However, President Obama’s stated view that federal courts are the preferred option and that military commissions should only be used for violations of the law of war has clearly changed. Now that military commissions are perceived as the only viable option, the President seems to be willing to allow prosecutions for terrorism offenses regardless of whether they are traditional war crimes.”

Human and civil rights groups are no less vociferous in their condemnation of Military Commissions.

For example, Hina Shamsi, Director of the American Civil Liberties Union (ACLU) National Security Project, told The Public Record, “Trying Guantánamo detainees in the military commissions – which are designed to ensure convictions, not fair trials – would be a major step backward for attempts to restore the rule of law.”

She added, ”It is disappointing that the administration seems determined to proceed with the discredited commissions, but has made little progress on prosecuting suspects in the more reliable federal courts. If credible evidence exists against Guantanamo detainees, they should be prosecuted in federal criminal courts, which are fully capable of handling complex terrorism trials and delivering outcomes we can trust.”

Similar sentiments come from Bill Quigley, legal director of the Center for Constitutional Rights (CCR), a public interest law firm that has mobilized dozens of pro-bono private sector lawyers to defend Guantanamo detainees.

Quigley, also a professor at the Loyola University law school, told The Public Record, “We think President Obama has made a major mistake in getting behind military commissions. This is a second class system of justice for the Arab and Muslim men in Guantanamo. This second class system will likely be struck down by the courts and certainly will subject the US to more international condemnation for these violations of human rights.”

He added, “Federal courts have worked since our country was founded. They can work now.”

Most of the attorneys contacted by The Public Record could find few redeeming qualities in the Military Commissions.

Prof. Peter Shane of the Ohio State University law school reminded us that, “In November, 2009, Attorney General Holder told Congress, ‘The venue in which we are most likely to obtain justice for the American people is in federal court.’ He’s right,” said Prof. Shane.

He continued: “Although the Commission system has been significantly improved through the Military Commissions Act of 2009, it will always be seen as offering a kind of second-class justice, and it is by no means obvious that anyone will be convicted through the Commission system who could not otherwise be prosecuted in federal court.”

He concluded: “The best thing that can be said about the resumption of trials is that formally adjudicating the culpability of the remaining detainees pursuant to reasonably decent procedures is better than indefinite detention without adjudication. Of course, had we not subjected any of the detainees to abusive interrogation – the value of which has been doubted even by the CIA Inspector General – all detainees accused of war crimes could probably have been brought to justice consistent with the rule of law.”

Finally, veteran human rights defender Chip Pitts poses the ultimate question:

He says, “The administration mishandled Congressional relations in ways that undoubtedly made it harder for President Obama to keep his campaign promises to close Gitmo and move away from military commissions, but its continued failure to deploy serious political capital on the entire cluster of domestic rule-of-law and human rights issues remains short-sighted.”

He continues: “Fears of trying these suspects in regular American courts are unfounded and unworthy of the “land of the free and home of the brave,” and make terror a self-fulfilling prophecy.”

Then Pitts asks, “Might America really execute an individual the US government tortured, on hearsay evidence, in illegal tribunals designed to convict, without a full and fair trial? “

He concludes: “True leadership demands the courage to fight for important issues of principle, but instead this administration, like the last, continues to take the easy way out, simultaneously shredding core American values and genuine American security.”

“One can only hope against hope – likely in vain – that this is not a full capitulation to dictatorial methods of the sort our nation has so often condemned, and that some as-yet undisclosed strategy (e.g. using Justice Department rather than Defense Department funds) remains to transfer at least some of the prisoners to face true justice in civilian courts.”

Chip Pitts is the former head of Amnesty USA and currently a Board member of the Bill of Rights Defense Committee.

William Fisher, a regular contributor to The Public Record, has managed economic development programs for the U.S. State Department and the U.S. Agency for International Development in the Middle East, Latin America and elsewhere for the past 25 years and served in the administration of President John F. Kennedy. He reports on a wide-range of issues for numerous domestic and international newspapers and online journals. He blogs at The World According to Bill Fisher.

I had subjected the government’s claims to detailed scrutiny, based on a number of factors, including the fact that the majority of the men in Guantánamo were seized by the US military’s Afghan and Pakistani allies, at a time when substantial bounty payments were widespread (PDF), and the fact that they had never been screened on capture, and subjected to Article 5 competent tribunals under the Geneva Conventions. Held close to the time and place of capture, these tribunals allowed non-uniformed prisoners to call witnesses, and were designed to separate soldiers from civilians caught up in the fog of war. They had been implemented successfully up to and including the first Gulf War in 1991, when around 1200 competent tribunals were held, and in three-quarters of the cases, those seized were freed, because they were able to demonstrate that they were civilians seized by mistake. At Guantánamo, I contend that the population could easily have been halved — from 779 to around 400 — had the competent tribunals not been dismissed by the Bush administration, which arrogantly asserted that it was, essentially, incapable of making mistakes — or didn’t care that mistakes had been made on a colossal scale.

Where Wittes and I also fundamentally disagreed — and still do — was in our analysis of the government’s supposed evidence. Whereas his analysis reads, essentially, like a summary of the case for the prosecution, I was aware that torture, coercion and bribery had been used to secure confessions, and I am gratified that this has been confirmed, many times over, during the last two years in the District Court in Washington D.C., where judges have been subjecting the supposed evidence to independent scrutiny, and have discovered the extent to which the prisoners themselves, or their fellow prisoners, were tortured or coerced into making false confessions.

The judges have also found evidence of the government’s repeated reliance on informants, whose reliability has been questioned by the authorities themselves, which tallies with discoveries made by a military officer working on the Combatant Status Review Tribunals at Guantánamo in 2004-05 (the Bush administration’s belated and mocking echo of the Article 5 competent tribunals), who discovered that one particular Yemeni prisoner had told lies about 60 of his fellow prisoners.

Some of the judges have also dismissed the government’s attempts to create a “mosaic” of evidence through seemingly isolated pieces of information, and this echoes, in part, the revelations made by Lt. Col. Stephen Abraham, a veteran of US intelligence, who worked on compiling the information used as evidence in the tribunals, and who asserted, in a statement submitted to the Supreme Court in 2007, that the gathering of materials for use in the tribunals was severely flawed, consisting 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,” that “what purported to be specific statements of fact lacked even the most fundamental earmarks of objectively credible evidence,” and that the whole system was geared towards rubber-stamping the detainees’ prior designation as “enemy combatants.”

Since he completed his project, Wittes — sometimes with Jack Goldsmith, former Assistant Attorney General in the Justice Department’s Office of Legal Counsel — has become an enthusiast for new legislation authorizing indefinite detention for prisoners seized in the “War on Terror,” publishing numerous articles and papers, and also securing opportunities to disseminate these ideas through op-eds in the Washington Post.

They are entitled to their views, of course, but personally I find it chilling that “military detention without trial” is being proposed as “a means for incapacitating terrorists” that is preferable to federal court trials, as they stated in an op-ed for the Washington Post after the federal court trial of Ahmed Khalfan Ghailani, a former Guantánamo prisoner, and a former CIA “ghost prisoner,” who was acquited on all but one charge two weeks ago, but neverthless faces a mandatory minimum of 20 years in prison.

Like Wittes and Goldsmith, I oppose the Military Commissions (brought back to life by Dick Cheney in November 2001, ruled illegal by the Supreme Court in June 2006 and revived twice by Congress, in the fall of 2006, and last year under President Obama) as a failed system that is unsuitable for trying terror suspects, as Lt. Col. David Frakt, former defense attorney for two Guantánamo prisoners, has explained in depth, but unlike them I believe that federal court trials are the correct venue for trying terror suspects, and that prisoners associated with the Taliban in Afghanistan (or even with what could be called the military wing of al-Qaeda, which supported the Taliban, but was essentially unconnected to the organizations’s global terrorist operations) should have been held as prisoners of war rather than as “enemy combatants” in a prison that failed — and still fails — to distinguish between terrorists and soldiers.

I also believe that the legislation that currently exists and that is used by President Obama to justify the men’s ongoing detention (the Authorization for Use of Military Force, passed by Congress the week after the 9/11 attacks) not only does not need replacing with the kind of alternative proposed by Wittes and Goldsmith, but should be scrapped, so that the United States can return to the pre-Bush world in which soldiers are prioners of war, and terrorists are criminals (as, in fact, has been acknowledged outside of Guantánamo and the CIA’s secret prison network, with the successful prosecution, since 2001, of numerous terror suspects in federal court).

On Wednesday, in response to an article, “The Rule of Law in the US Hangs on Obama’s Response to the Ghailani Trial,” in which I savaged Republican critics of the Ghailani verdict, who are using it to advance their own unjustifiable belief that terrorists are “warriors,” who should be tried by Military Commission at Guantánamo (despite the well-chronicled unsuitability of the Commissions as a venue for prosecuting terrorists), I also alluded to the work undertaken by Wittes and Goldsmith — and their colleague, law professor Robert Chesney — which, since September, has found a new outlet through their group blog, Lawfare.

In response, Benjamin Wittes published the article reproduced below, taking exception to some of the views I expressed, which prompted me to reply, to point out that he had mistaken part of my commentary, and to clarify other beliefs of mine which he had misinterpreted. Showing that dialogue is possible between those who hold differing views (unlike, for example, between those of us who oppose the existence of Guantánamo and the Republican lawmakers I referred to in my article about the Ghailani trial), Wittes then posted my reply, which I have cross-posted in response to his article.

I still regard his views with horror, as the very notion of passing legislation to endorse indefinite detention without trial, nine years after 9/11 and the beginning of the Bush adminstration’s descent into lawlessness, stands in such fundamental opposition to everything I hold dear about the law. I am, however, grateful that Wittes published my response, and that we were able to demonstrate that differing points of view can be challenged through dialogue, rather than through the kind of polarized politics that has crippled the Obama administration in its dealings with national security. Regular readers will know that I do not regard the President as blameless in this, as he has persistently lacked the courage to stand up to his critics, but it nevertheless remains true that, on national security issues, and on dealing with terror suspects and Guantánamo, there are far too many voices raised on a regular basis that resemble nothing less than the darkest days of the Bush and Cheney years, which is the last place that a responsible America needs to find itself.

Cross-posted below is my exchange with Benjamin Wittes:

“Blind Vengeance and a Thorough Disdain for the Law”
By Benjamin Wittes, Lawfare, November 25, 2010

This is how the always-entertaining British journalist, Andy Worthington describes critics of federal court trials, including — it seems — Jack and Bobby and me, which is kind of funny considering that we are not really critics of federal court trials at all. Worthington has written a great deal about Guantánamo over the years, and to give him his due, he did an incredible job of identifying the population at the facility. On certain empirical questions, I have relied on his work extensively and admire it. On normative matters, however, we are as far apart as can be. I regard him as absurdly credulous of the innocence of just about everyone at the base; he comes from the school of thought that believes that any detainee who says he’s a sheep farmer or aid worker obviously is exactly that and that it’s an affront to the rule of law that American forces might, well, not believe some of them. For his part, he describes me as follows:

Fortunately, for now, few critics have rallied behind a small group of other critics — Benjamin Wittes of the Brookings Institution, Jack Goldsmith, former Assistant Attorney General in the Justice Department’s Office of Legal Counsel, and law professor Robert Chesney — who have taken another troubling unconstitutional line, suggesting that Congress should enact legislation to hold terror suspects indefinitely without even bothering to think about putting them on trial.

However, without decisive action in support of US law and the Constitution on the part of the government, it may be that the idea of avoiding trials altogether for terrorist suspects will gain in strength. In this, Wittes, Goldsmith and Chesney may find that they are encouraged, disturbingly, by the Obama administration itself, which has already endorsed indefinite detention without charge or trial for 48 of the remaining 174 prisoners in Guantánamo, on the advice of the interagency Guantánamo Review Task Force, which was established by President Obama last year to review the cases of the remaining prisoners.

Moreover, in its apparent paralysis regarding trials either in federal court or by Military Commission for 34 prisoners (who were recommended for trial by the Task Force), the Obama administration is close to finding that it has enshrined indefinite detention without charge or trial as official US policy unless it acts immediately to put other Guantánamo prisoners on trial in federal court — starting, I suggest, with Khalid Sheikh Mohammed and his four alleged co-conspirators in the 9/11 attacks, whose federal court trial was announced by Eric Holder almost exactly a year ago.

If senior officials believe in the ability of federal courts to try terrorist suspects, they need to find the courage to say so, to say so boldly and with a courage that has been sadly lacking, and to follow through on their beliefs without caving in to criticism from opponents whose entire point of view is fueled by blind vengeance and a thorough disdain for the law.

A few points in response.

First, it is not quite fair to Bobby to group him in with Jack and me on this matter. His lust for blind vengeance and disdain for the law — though considerable, I’m sure — may not quite be on a par with ours. Specifically, I don’t know him to have endorsed the idea of not bringing Guantánamo detainees to trial at all. Indeed, while Bobby certainly supports detention legislation, his work was pivotal in opening up for question the Bush administration’s contention that federal courts were a wuss forum compared with military commissions. I don’t know what Bobby thinks about whether and when, at this stage, trials are desirable for this group of people, and Worthington should not presume he does either. At any rate, as Woody Allen might put it, I happen to have Bobby Chesney right here, so he can speak for himself on the point.

Second, I won’t argue with Worthington about whether my views on detention are “troubling” or not, but there is simply nothing unconstitutional about military detention. To be sure, it could be done in an unconstitutional fashion. But the core premise that some non-criminal detention of war-on-terror suspects is available to the executive is not at this point even constitutionally controversial, let alone in significant doubt. At least, it’s not controversial among the justices of the Supreme Court, the Congress of the United States, or the presidency of the United States — whether the presidency is held in Republican or Democratic hands. There are questions, of course, about the permissible legal boundaries of detention, questions that we bat around on Lawfare every day. But it just won’t do any more for the Left to dismiss detention per se as a lawless or unconstitutional option. The last time I checked, the Constitution doesn’t vest in British journalists the authority to interpret its meaning, and the officials in whom it does vest interpretive power do not share Worthington’s view.

Finally, there is an important point of agreement here: I wholly share Worthington’s frustration with the administration’s paralysis. I will support and defend just about any lawful disposition of these cases. If the administration decides to try people in federal court, I will defend that decision against the inevitable conservative attacks. If it decides to try people in military commissions, I will defend that decision against the inevitable attacks from, among other people, Worthington. If it affirmatively decides not to bring people to trial — the option that I tend to favor — I will defend that against their cries of lawlessness. I have suggested that the administration might thread the needle of federal courts vs. military commissions by using both forums in the September 11 case. And I am open to the creation of alternative trial venues if that will help too. The one approach I think is utterly indefensible is hand-wringing passivity — precisely what the administration has been doing for the last year. It’s just terrible leadership; Worthington is correct that it displays weakness to domestic critics, but the more important point is that it displays weakness and uncertainty to the enemy. At some point, and that point was long ago, one needs to make a decision, articulate it, stand by it, and implement it.

Andy Worthington Responds
By Benjamin Wittes, Lawfare, November 25, 2010

I received the following note from Andy Worthington in response to my earlier post about his article. I appreciate very much his clarifications, which read in relevant part:

My intention was not to describe you and Jack and Robert as “fueled by blind vengeance and a thorough disdain for the law” — and I apologize if that was unclear. I thought it was clear that I was referring back to the Republican lawmakers and their ideologically-driven disdain for federal court trials and for the absolute prohibition on the use of torture, and their mistaken enthusiasm for Military Commissions.

I also would like to clarify my position regarding the prisoners at Guantánamo, which also relates to your views on indefinite detention. You may, if you wish, describe me as “absurdly credulous of the innocence of just about everyone at the base,” but in fact I have never stated any such thing. I believe that around three dozen of the prisoners — maybe a little more, maybe a little less — have anything in their case histories to indicate that they had any involvement with terrorism, and that, of the rest, roughly half were innocent men, seized by mistake, or through the opportunism that develops in one’s allies when large bounty payments are offered for “al-Qaeda and Taliban suspects,” and the other half were foot soldiers for the Taliban.

And as you also know, I’m sure, my problem with the detention policy is that I believe the Authorization for Use of Military Force, passed by Congress the week after the 9/11 attacks, which, with a ruling by the Supreme Court in 2004, is used to justify the prisoners’ detention at Guantánamo, is an unacceptable alternative to the Geneva Conventions as a means of holding wartime prisoners until the end of hostilities. I also believe that those accused of terrorist activities should be tried in federal court, as they have been for many years both before and after the 9/11 attacks. What galls me, and will continue to gall me, is holding both soldiers and terror suspects indefinitely as “enemy combatants” — or, as they now are, “alien unprivileged enemy belligerents” — as though the Bush administration’s creation of a new category of prisoner — one without any rights at all — was fundamentally correct.

As a result, I don’t see the need for any new legislation, and, indeed, am deeply troubled by any proposal that would further undermine the Geneva Conventions and the success of the US courts in prosecuting terrorist suspects by refining the innovations introduced by the Bush administration, which showed a particular disdain for the strengths of domestic and international law, and for the robustness and importance of international treaties. Instead, I would like to see the AUMF repealed, wartime prisoners held according to the Geneva Conventions (and this applies to Bagram as well, and wartime detention in any future conflicts), and those accused of involvement in terrorist activities to be tried in federal court.

Originally published on Cageprisoners.

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

Ahmed Ghailani

To listen to certain Republican critics of last week’s verdict in the federal court trial of the Tanzanian Ahmed Khalfan Ghailani, a former Guantánamo prisoner and a former CIA “ghost prisoner,” you would think that the jury had found him not guilty, and that he had been released onto the streets of New York.

In fact, after deliberating for five days, the jury found him guilty on one count of conspiracy to destroy US property and buildings, which carries a mandatory 20-year sentence, although the judge in his case, Judge Lewis Kaplan, can decide that a life sentence is appropriate.

Why, then, did Representative Peter King (R-NY), who is poised to become the chairman of the House Homeland Security Committee in January, exclaim, “This is a tragic wake-up call to the Obama Administration to immediately abandon its ill-advised plan to try Guantánamo terrorists” in federal civilian courts?

The reason is naked ideology, of a very damaging kind, as Rep. King revealed in the comment that followed. “We must treat them as wartime enemies,” he said, “and try them in military commissions at Guantánamo.”

For Rep. King and his fellow Republicans, who were queuing up to damn President Obama for his imperceptible failure, the naked truth is that they would have been even more dissatisfied if the jury had convicted Ghailani on the other 284 counts on which they found him not guilty, as it would have made it more difficult for them to attempt to justify their obsession with treating Ghailani — and all the other prisoners in Guantánamo — as “warriors” in the “War on Terror” launched by the Bush administration, for whom federal court trials are ideologically unsuitable.

Such is the blinkered obsession of these critics that they actively want information derived from torture to be used in the trials of alleged terrorists, and they blame Judge Kaplan for upholding the law by excluding from the trial the government’s alleged “star witness,” a Tanzanian named Hussein Abebe, whose name was revealed by Ghailani while he was being subjected to torture in a secret prison run by the CIA — part of a network of secret prisons in which he was held for two years and two months, after his capture in Pakistan in July 2004, until his transfer to Guantánamo, with 13 other alleged “high-value detainees,” in September 2006.

To these critics, it is irrelevant that information derived through the use of torture was excluded by Judge Kaplan because such information can never be used in federal court — and because the use of torture is a crime under domestic US law — just as it is irrelevant that Hussein Abebe’s testimony may also have been suspicious, as Marcy Wheeler pointed out in two articles on FireDogLake.

Nor, bizarrely, do they care that experts with deeper knowledge of the Commissions have pointed out that a military judge in a trial by Military Commission would also have excluded evidence derived through the use of torture, or that the Commissions themselves have a dismal record when it comes to successful prosecutions, having secured just five verdicts since their revival nine years ago: three through plea deals (in the cases of David Hicks, Ibrahim al-Qosi and Omar Khadr); one, in the case of Salim Hamdan, a driver for Osama bin Laden, after a trial in which the military jury threw out a charge of conspiracy; and another, in the case of Ali Hamza al-Bahlul, who produced a propaganda video for al-Qaeda, after a one-sided trial in which al-Bahlul refused to mount a defense.

With the exception of al-Bahlul, who is serving a life sentence (although this is being appealed), all these supposed victories have perished under scrutiny: in 2007, Hicks was freed almost immediately, to serve just seven months in Australia; Hamdan received a sentence of five and a half years, but the judge decided it included time already served, and he was a free man after just five months; al-Qosi, a sometime cook for al-Qaeda, is expected to serve two years; and Omar Khadr’s plea deal means he will be freed from Guantánamo in a year, with seven years ahead of him in a Canadian prison.

Also irrelevant to these advocates of torture and bent trials is the fact that federal courts have an enormously successful track record of prosecuting terrorists, and that the fate of Ghailani’s alleged co-conspirators in the 1998 bombings provides a salutary lesson regarding these successes, providing a ringing endorsement of federal court trials for terrorists, and — along the way — also providing a damning repudiation of the extralegal novelties of the “War on Terror.” Rather than being diverted into a network of secret prisons run by the CIA, where torture was making an ill-advised renaissance, Mohamed Rashed Daoud al-’Owhali, Khalfan Khamis Mohamed, Mohamed Sadeek Odeh and Wadih el-Hage were interrogated by FBI officials without the use of torture, were successfully convicted in a federal court in New York in May 2001, and were sentenced to life without parole in October 2001 — when the “War on Terror” had already begun.

All of the above is supposedly irrelevant to critics of the verdict in Ghailani’s trials because these cheerleaders for the Commissions — and for the use of information derived through the use of torture — want to ignore reality and return to the world envisaged by former Vice President Dick Cheney and his legal counsel David Addington in November 2001, when they first revived the Military Commissions, intending that they would be able to launder information derived through torture, and sentence supposed terrorist suspects to death without anything remotely resembling due process.

This is the system which, although still a second-rate system of justice, reserved for foreigners regarded as terrorist suspects, or as “alien unprivileged enemy combatants,” who are not allowed to raise arms against US forces under any circumstances, has been amended over the years, after the Supreme Court ruled it illegal in June 2006, demolishing Cheney’s dream so that information derived through the use of torture is banned, as it is in federal court trials. As a result, the only essential difference between the Commissions and federal court trials is that the military judges in the former can use their discretion to decide whether or not to allow the use of information that may have been derived through coercion rather than torture.

This may have made a difference in Ghailani’s case, but it seems unlikely, given the Commissions’ track record, that it would necessarily have led to a harsher sentence than the one Ghailani will receive after his federal court trial. In addition, it is worth considering that Ghailani’s trial took place with barely a mention of his treatment in secret CIA prisons or in Guantanamo, when the precedents from the Commissions indicate that military defense lawyers may have fought more tenaciously to raise it as an issue.

Once it becomes apparent that critics of the verdict in Ghailani’s trial are actually seeking a return to the lawless fantasy land envisaged by Dick Cheney and David Addington, and believe — contrary to the evidence — that US law is soft and useless, it also becomes apparent that the silence of President Obama and Attorney General Eric Holder in response to these complaints is deeply troubling.

The Obama administration needs to put down those who are insulting US law through the prism of their own warped ideology, or there is no telling where the rot will stop. Fortunately, for now, few critics have rallied behind a small group of other critics — Benjamin Wittes of the Brookings Institution, Jack Goldsmith, former Assistant Attorney General in the Justice Department’s Office of Legal Counsel, and law professor Robert Chesney — who have taken another troubling unconstitutional line, suggesting that Congress should enact legislation to hold terror suspects indefinitely without even bothering to think about putting them on trial.

However, without decisive action in support of US law and the Constitution on the part of the government, it may be that the idea of avoiding trials altogether for terrorist suspects will gain in strength. In this, Wittes, Goldsmith and Chesney may find that they are encouraged, disturbingly, by the Obama administration itself, which has already endorsed indefinite detention without charge or trial for 48 of the remaining 174 prisoners in Guantánamo, on the advice of the interagency Guantánamo Review Task Force, which was established by President Obama last year to review the cases of the remaining prisoners.

Moreover, in its apparent paralysis regarding trials either in federal court or by Military Commission for 34 prisoners (who were recommended for trial by the Task Force), the Obama administration is close to finding that it has enshrined indefinite detention without charge or trial as official US policy unless it acts immediately to put other Guantánamo prisoners on trial in federal court — starting, I suggest, with Khalid Sheikh Mohammed and his four alleged co-conspirators in the 9/11 attacks, whose federal court trial was announced by Eric Holder almost exactly a year ago.

If senior officials believe in the ability of federal courts to try terrorist suspects, they need to find the courage to say so, to say so boldly and with a courage that has been sadly lacking, and to follow through on their beliefs without caving in to criticism from opponents whose entire point of view is fueled by blind vengeance and a thorough disdain for the law.

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.