Guantanamo detainee Fayiz al-Kandari

As evidenced by the recent outpouring of generous support for the people of Haiti, America remains a caring and compassionate nation. But when it comes to human rights and the rule of law, the United States falls woefully short, trailing behind the rest of the civilized world. Case in point, the U.S. government is seriously considering indefinite detentions for some Guantanamo detainees.

Sen. Lindsey Graham (R-SC) said last weekend that the White House may support a new law that would allow the indefinite detention of some terrorism suspects. Meanwhile, last month the Guantanamo Detainee Review Panel finally recommended which detainees should be released and which ones should face trials. It came as little surprise that more than 100 detainees were cleared for release while about 35 will be tried either by federal court or military commission. Yet surprisingly, approximately 50 detainees have been recommended for indefinite detention without trial. The administration claims they are considered too dangerous to be released but too difficult to prosecute even in the conviction-friendly Commission System.

These 50 detainees present a perplexing situation for the United States. The United States prides itself on being a world leader on human rights and the rule of law, and has been consistently outspoken in its criticism of human rights abuses by other nations. But in its zeal to demonstrate a “tough on terrorism” stance, the United States has failed to live up to these values.

One of the hallmarks of the American judicial system is the presumption of innocence. If arrested for an alleged crime, we have the right to a trial, to confront our accusers, and to present evidence in our defense. Indefinite detention bypasses these rights, short circuits due process, and turns the presumption of innocence on its head. In short, it presumes guilt and offers no remedy to challenge that presumption.

It is tempting to assume the decision to hold detainees indefinitely is based on a review of credible evidence. But if the evidence is so persuasive, why not introduce it in a court of law and secure a legitimate conviction? Time and again, federal courts have proven fully capable of handling terrorism cases. In fact, the Bush administration successfully prosecuted at least 319 terrorism or terrorism-related cases in civilian courts.

If the evidence is not reviewed by a court of law, who does review the evidence and determine the fates of individual suspects? The evidence is classified and the identities of those making the determinations are closely guarded. This process is entirely secret and inherently un-American. A system that authorizes indefinite detention based on secret evidence can only result in distrust and suspicion.

I represent Fayiz al-Kandari, a Kuwaiti citizen who has been imprisoned at Guantanamo Bay for more than eight years without a trial. In my July 2009 letter to the Washington Post, I explained how every time I visit my client he asks whether I have news of justice for him. Each time, I am forced to answer “I have no justice today.” Assuming Fayiz would someday have his “day in court,” I prepared him for the probability that “justice” would come in the form of a military commission – a second-rate judicial system largely designed to permit rumor as evidence. Unfortunately, I am now left to wonder whether Fayiz will ever be afforded any semblance of justice.

Admittedly, under the laws and customs of war, a nation may detain “enemy combatants” for the duration of an armed conflict. But in an “armed conflict” as ambiguous as the War on Terrorism, can this same standard possibly apply? If so, when can we expect the armed conflict to end? Terrorism dates back to the 14th century or earlier and has been employed throughout history. If the “War on Terrorism” will not end until terrorism no longer exists on Earth, Fayiz will never breathe free.

We are at a key juncture in our nation’s history. We can give in to political expediency and fear, or we can restore the rule of law and uphold our country’s founding principles. Let’s not go down the slippery slope of indefinite detentions.

Lt. Col. Barry Wingard represents Fayiz al-Kandari, a Kuwaiti who has spent seven and a half years in U.S. custody at Guantanamo Bay without trial.

Swearing in judges on the Court of Military Commission Review. John Rolph swears in Paul Holden, Dawn Scholz, Steven Walburn, Amy Bechtold, Steven Thompson, Lisa Schenck, and Eric Geiser. Photo/Wikimedia

Last Tuesday, a little known court — the Court of Military Commissions Review — convened to hear appeals in the cases of the only two men sentenced in the Military Commission trial system established by Congress in 2006, after the first version, conceived by Vice President Dick Cheney and his close advisors in November 2001, was ruled illegal by the US Supreme Court.

The two men in question — Salim Hamdan and Ali Hamza al-Bahlul — were tried and convicted in 2008, but whereas Hamdan, a driver for Osama bin Laden, had the major charge against him (conspiracy) dismissed by a military jury in August 2008, and was sentenced to serve just six months for providing material support to terrorism, al-Bahlul, who made a video promoting al-Qaeda and is regularly described as al-Qaeda’s “media secretary,” was convicted of conspiracy, solicitation of murder, and providing material support to terrorism, and received a life sentence in November 2008.

Under consideration are two specific questions: firstly, whether providing material support to terrorism is a valid basis for conviction in a war crimes court; and, secondly, whether al-Bahlul’s trial was unfair because he was denied the right to represent himself.

On the first point, lawyers have always maintained that providing material support to terrorism is not a valid war crime. In an email exchange last week, Lt. Col. David Frakt, who represented al-Bahlul before his trial, explained, “It has always been my position that material support to terrorism was a fabricated war crime that was not traditionally triable in a military commission as of the time of Mr. al-Bahlul and Mr. Hamdan’s affiliation with al-Qaeda, but rather was illegally retroactively applied to them several years after the fact.”

As Lt. Col. Frakt also mentioned, the problems with the material support charges had been advanced by Hamdan’s attorneys in a pre-trial motion to dismiss the charge back in February 2008, when they also attempted to dismiss the conspiracy charge for the same reason. On July 16, the judge in Hamdan’s case, Army Capt. Keith Allred, rejected the motion to dismiss on ex post facto grounds, finding that “conspiracy and material support for terrorism have traditionally been considered violations of the law of war,” as Human Rights First explained in a summary of Hamdan’s case.

However, as Lt. Col. Frakt described it, Allred indicated that it was “a very close issue. Although he acknowledged that the crime of material support to terrorism had never been the subject of charges in a military commission before, he reasoned that similar conduct, essentially being part of an armed insurgent group committing war crimes against civilians, had been treated as a war crime in the past, such as during the US Civil War. He argued that Congress was merely providing a new name to conduct that had always been treated as a law of war offense triable by military commission.”

Significantly, Lt. Col. Frakt added, “What Captain Allred ignored is that what Mr. Hamdan was charged with was essentially serving as a personal driver and servant to Osama bin Laden and there was no indication of involvement in any war crimes, against civilians or otherwise.”

Even more significantly, when the Obama administration and Congress revived the Commissions last summer, David Kris, a senior Justice Department official in the National Security Division, testified that the Justice Department had concluded that material support to terrorism was not a traditional war crime and should be removed from the new version of the Military Commissions Act. As Kris explained (PDF):

While this is a very important offense in our counterterrorism prosecutions in Federal Court … there are serious questions as to whether material support for terrorism or terrorist groups is a traditional violation of the rules of war … our experts believe that there is a significant risk that appellate courts will ultimately conclude that material support for terrorism is not a traditional law of war offense, thereby reversing hard-won convictions and leading to questions about the system’s legitimacy.

As Lt. Col. Frakt explained to me, despite Kris’ concerns, “Congress rejected this sound advice and included material support to terrorism in the revised 2009 MCA, possibly in part because I advised Congress when I testified that if they removed this crime from statute there would be very few detainees left to prosecute.”

Noticeably, Kris was more enthusiastic about retaining the conspiracy charge, but as I explained in an article in November, “this, too, is fraught with problems. In Hamdan v. Rumsfeld, the case in which the Supreme Court shut down the Commissions’ first incarnation, Justice John Paul Stevens, in an opinion in which he was joined by three other justices, made a point of mentioning that ‘conspiracy’ has not traditionally been considered a war crime.”

In Hamdan’s case, a successful appeal on the material support charge would have little practical effect, as he is already a free man (although Charles Schmitz, who served as his interpreter during proceedings at Guantánamo, told the Wall Street Journal that it was “important to him to clear the conviction,” because “In Yemen, they look at him as a criminal. He’s been tainted”).

To be honest, a successful appeal on the material support charge would mean little to al-Bahlul either, although, it would, of course, fulfill the Justice Department’s own fears about including it in the new legislation, especially as the Obama administration has already announced its intention of using it against several prisoners currently held at Guantánamo.

It remains to be seen, of course, whether material support and/or conspiracy survive an appeal, but in court last week, lawyers for al-Bahlul pushed both points. As the Wall Street Journal described it, Michel Paradis, representing al-Bahlul, argued that the charges on which al-Bahlul was convicted “weren’t traditionally considered war crimes under international law, and thus Congress in 2006 couldn’t retroactively make them so. International law strongly discourages viewing conspiracy as a war crime. Providing material support for terrorism, while a domestic US crime since the 1990s, has never been considered a war crime.”

Ingeniously, the lawyers also argued that al-Bahlul’s production of propaganda material for al-Qaeda should have been protected by the First Amendment of the US Constitution, guaranteeing freedom of speech. One of his attorneys, Mike Berrigan, told reporters, “Mr. al-Bahlul’s conduct in making this documentary — his prosecution for that conduct — was a violation of the US First Amendment.  Not that Mr. al-Bahlul had particular First Amendment rights, but the constitutional restrictions on the US government prosecuting someone for speech made the prosecution itself illegal. Mr. al-Bahlul’s conduct in making that documentary does not come close to the standard of inciting violence that can be criminalized.”

The prosecution disagreed, of course, and Navy Capt. Edward White, who argued for the government at the appeal, stated, “Our position was that, as an enemy combatant waging war against the United States from abroad, he does not have First Amendment rights. He crossed the line into criminally, soliciting other people — inducing, enticing, encouraging, persuading them — to commit war crimes.”

Beyond all these claims, however, the most disturbing aspect of al-Bahlul’s conviction is the nature of his trial, and what Lt. Col. Frakt described to me as his “best hope” is that the Court of Military Commission Review will recognize that the one-sided trial, in which he refused to mount a defense, was fundamentally unfair — or, as Lt. Col. Frakt put it, the judge’s “denial of his right to self-representation essentially denied him of a fair trial because the judge knew that he would not allow me to represent him.”

This was indeed what happened. Al-Bahlul sought strenuously to represent himself, but although his request was granted by Army Col. Peter Brownback, his first judge in the revived Commissions, Brownback was then involuntarily retired from the Army, and the new judge, Air Force Col. Ronald Gregory, revoked al- Bahlul’s pro se status (his right to represent himself).

As I explained at the time, after Maj. Frakt (as he was at the time) announced that al-Bahlul was boycotting the trial, because he wished to represent himself, and did not wish to be represented by a military lawyer, Frakt then asked to be relieved, noting that he was obliged to respect his client’s wishes. When Col. Gregory refused, he declared that he too was unable to participate. “I will be joining Mr. al-Bahlul’s boycott of the proceedings,” he said, “standing mute at the table.” He then refused to answer any further questions from Col. Gregory, even though the judge attempted to argue that he was “obliged to participate,” before conceding that it was not in his power to force him to do so. As Lt. Col. Frakt described it to me last week, Col. Gregory’s actions “ensured there would be no defense at all in the final military commission trial of the Bush era.”

Lt. Col. Frakt also explained that, although appeals are automatic in the Commissions unless waived in writing, the only reason that al-Bahlul failed to waive his right to appeal in writing was because he “refused to accept any papers from his lawyers or the court.” As Frakt described it, “Mr. al-Bahlul made it plain to me that he did not wish to appeal any conviction and he categorically refused to meet with his appointed appellate counsel to discuss any possible grounds for appeal.”

Lt. Col. Frakt was full of praise for the lawyers attempting to defend al-Bahlul, even though they “were hampered by the fact that I did not preserve any issues for appeal (other than the self-representation issue) because I did not speak during the entire trial.” He noted that they “managed to find a way to raise a number of interesting and important issues that strike at the core of the legitimacy of the military commissions,” but in the end, what is most noticeable about al-Bahlul’s case is how he remains in a position of extraordinary isolation at Guantánamo.

Not only is he imprisoned, alone, to serve out his life sentence, but as Lt. Col. Frakt explained, “it remains a mystery what will happen to Mr. al-Bahlul. Although he is serving a life sentence, under current US law, he can’t be transferred out of Guantánamo to a prison on the mainland because detainees can only be transferred to the US to face trial.”

Unless he is to stay in Guantánamo, as the prison slowly empties around him, until, perhaps, he is the only prisoner left, it seems, as Lt. Col. Frakt also explained, that “special legislation will be required” to enable him to leave Guantánamo, even if it is just to resume his life sentence elsewhere.

Lost in the system, essentially, Ali Hamza al-Bahlul is another example of the way in which justice at Guantánamo never progressed much beyond an ad hoc system full of holes, and, whatever the outcome of these appeals, it should give the Obama administration some salutary reminders as to why the Commissions remain an unsuitable system for any kind of credible trial.

This report was first 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.

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

The Obama administration has signaled that it is willing to allow the Justice Department to find a new venue to prosecute self-professed 9/11 mastermind Khalid Sheikh Mohammed, according to Sen. Chuck Schumer (D-NY).

The senator’s spokesman, Josh Vlasto, said Schumer spoke “with high-level members of the administration and urged them to find alternatives.”

The move comes a day after Mayor Michael Bloomberg called on the Justice Department to change the venue of the trial. Bloomberg had been a staunch supporter of holding the trial in New York.

“It would be an inconvenience at the least, and probably that’s too mild a word for people that live in the neighborhood and businesses in the neighborhood,” Bloomberg was quoted as telling reporters. “There are places that would be less expensive for the taxpayers and less disruptive for New York City”

In a statement aboard Air Force One Thursday as President Obama flew to Tampa, White House spokesman Bill Burton said the administration will not weigh in on where the trial should be held.

“Let me start by saying that Khalid Sheikh Mohammed is a murderous thug who has admitted to some of the most heinous crimes ever committed against our country,” Burton said. “The president is committed to seeing that he’s brought to justice. He agrees with the attorney general’s opinion in November that he and others can be litigated successfully and securing in the United States of America, just like others have, like Richard Reid. Currently our federal jails hold hundreds of convicted terrorists, and the president’s opinion has not changed on that.”

Attorney General Eric Holder announced last November that the trial for alleged 9/11 mastermind Khalid Shaikh Mohammed would be held in New York City.

The decision by Holder and the Obama administration to hold the trial in New York City was met with loud opposition, which came mainly from Republicans.

The issue took on a renewed sense of urgency Thursday with legislation introduced by Rep. Peter King (R-NY) aimed at outlawing the prosecution of terrorists in federal criminal courts.

King said on his website that the choice to transfer Mohammed and four others to New York “is one of the worst decisions ever made by any president.” King’s legislation, titled “Stopping Criminal Trials for Guantanamo Terrorists Act of 2010,” would prevent Justice Department funds from being used to prosecute any person detained at Guantanamo in a criminal court in the United States or one of its territories.

Even Democrats became concerned. Congressman Jerrold Nadler (D-NY) joined seven other elected officials in a letter to Attorney General Eric Holder that said they “are concerned that the Administration has not fully considered the impact that the trials would have on lower Manhattan.” In the letter they requested an evaluation of potential trial sites outside of Manhattan.

The decision to try Mohammed and four others in a Manhattan Federal court has been a flashpoint for argument since announced by Attorney General Eric Holder on November 13, 2009.  The decision to try Mohammed in a civilian court, as opposed to a Military Commission has been an issue or argument for weeks.

The letter to Holder from Nadler and the seven other elected officials, along with King’s bill to prevent the 9/11 trial from receiving Justice Department funds echoed Bloomberg’s newfound concern about the price tag for the trial and the potential for the trial to disrupt people and business in the city.

“It would be great if the federal government could find a site that didn’t cost a billion dollars, which using downtown will,” Bloomberg said.

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

Photo/Wikimedia

From the ACLU:

A federal court found on Wednesday that, based on the facts presented to it so far, the Library of Congress likely violated Col. Morris Davis’s rights when it fired him from his job at the Library’s Congressional Research Service (CRS) because of opinion pieces he wrote about the Guantánamo military commissions system that ran in the Wall Street Journal and the Washington Post in November. [For background, please see here and here.]

The court denied Davis’s request for an immediate injunction to compel the Library to reinstate him, however, finding that Col. Davis had not yet demonstrated the irreparable injury necessary for an injunction because Davis might be able to recover monetary damage in the future.

“While we’re disappointed that the court missed a chance to immediately right this wrong, the court’s ruling makes clear that the facts presented to it show that the Library likely violated Col. Davis’s rights when it fired him for exercising free speech. We look forward to the day when Col. Davis’s rights are restored,” said Aden Fine, staff attorney with the American Civil Liberties Union First Amendment Working Group. “Col. Davis didn’t give up his right to express himself about the military commissions when he went to work for the Library of Congress.”

The ACLU filed a lawsuit on behalf of Davis against Daniel Mulhollan, Davis’s supervisor at CRS, and James Billington, the Librarian of Congress, charging that CRS violated Davis’s right to free speech and due process when it removed him from his position as the Assistant Director of the Foreign Affairs, Defense and Trade Division at CRS for speaking as a private citizen about matters of public concern having nothing to do with his responsibilities at CRS. Both pieces were written by Davis in his personal capacity, made clear that he was writing as a private individual and former chief prosecutor of the military commissions and made no mention of CRS. Davis wrote the pieces on his home computer during non-work hours.

The ACLU had asked Judge Reggie B. Walton of the U.S. District Court for the District of Columbia to issue an immediate injunction to compel the Library to reinstate Davis to his former job and block it from hiring a permanent replacement for that position in the interim. While Judge Walton declined to issue the injunction, his ruling made clear that Col. Davis has a right and grounds to make a claim that the Library violated his rights.

“While I’m disappointed that the Court didn’t immediately take the necessary steps to right this wrong and stop the Library from firing me, I am hopeful the ultimate outcome of this case will recognize my right to free expression,” said Davis. “I will continue the fight to get my job at CRS back, although it’s a fight I never should have had to undertake.”

Judge Walton’s decision is available online here.

On Nov. 13, when Holder announced that five prisoners — including Khalid Sheikh Mohammed — would face federal court trials for their alleged involvement in the 9/11 attacks, he also announced that five other men, previously charged in the Bush administration’s Military Commissions, would be tried in a revamped version of the Commissions that the administration and Congress concocted over the summer.

Notwithstanding the weaknesses of the Military Commission trial system (some of which emerged in its first faltering outing last month), and the very real fear that it is being used by the Obama administration as a second-tier system of justice, the decision to charge Obaidullah is particularly dispiriting, as he is so clearly a peripheral character of such insignificance that putting him up for a war crimes trial risks ridicule.

As I explained in September 2008, when he became the 18th prisoner to be put forward for a trial by Military Commission, he was:

charged with “conspiracy” and “providing material support to terrorism,” based on the thinnest set of allegations to date: essentially, a single claim that, “[o]n or about 22 July 2002,” he “stored and concealed anti-tank mines, other explosive devices, and related equipment”; that he “concealed on his person a notebook describing how to wire and detonate explosive devices”; and that he “knew or intended” that his “material support and resources were to be used in preparation for and in carrying out a terrorist attack.”

As I also explained:

It doesn’t take much reflection on these charges to realize that it is a depressingly clear example of the US administration’s disturbing, post-9/11 redefinition of “war crimes,” which apparently allows the US authorities to claim that they can equate minor acts of insurgency committed by a citizen of an occupied nation with terrorism.

This was not all. In his Combatant Status Review Tribunal and Administrative Review Boards at Guantánamo (the military review boards established to ascertain whether he had been correctly designated as an “enemy combatant,” and whether he still posed a threat to the US), he made it clear that he had made false allegations against himself and another Afghan prisoner still held — a shopkeeper named Bostan Karim — because of the abuse he had suffered, at the hands of US forces, in a forward operating base in Khost and in the main US prison in Afghanistan, at Bagram airbase.

The following exchange, from his ARB in 2005, when he explained that he had been “forced” to make false confessions about Karim while held in Bagram is particularly enlightening:

Board Member: Who forced you to say things?
Detainee: Americans.
Board Member: How did they force you?
Detainee: The first time when they captured me and brought me to Khost they put a knife to my throat and said if you don’t tell us the truth and you lie to us we are going to slaughter you.
Board Member: Were they wearing uniforms?
Detainee: Yes … They tied my hands and put a heavy bag of sand on my hands and made me walk all night in the Khost airport … In Bagram they gave me more trouble and would not let me sleep. They were standing me on the wall and my hands were hanging above my head. There were a lot of things they made me say.

Back in September 2008, I concluded my article by asking, “So tell me, after reading this: does charging Obaidullah for ‘war crimes’ look like justice?”

With the news that Obaidullah is to be charged again, when he is not actually accused of harming a single American, and when he may, in fact, have been tortured, through sleep deprivation and “Palestinian hanging,” to produce false confessions against himself and at least one other prisoner, leads me not only to repeat the question, but to actively call for the open mockery of Attorney General Eric Holder and the lawyers and bureaucrats in the Justice Department and the Pentagon who thought that reviving the charges against him was a good idea.

Editor’s note: On Thursday, the American Civil Liberties Union criticized the Obama administration’s decision to use the military commissions to prosecute Obaidullah.

In a statement, Jameel Jaffer, director of the ACLU’s National Security Project said it’s “disappointing that the [Obama] administration has chosen to prosecute another Guantánamo detainee in a discredited system that is designed to ensure convictions rather than fair trials.”

“While Congress recently improved the military commissions system in certain respects, the system still fails to provide the procedural rights that are guaranteed by U.S. and international law,” Jaffer said. “The military commissions system is also unnecessary, because the federal courts are well-equipped to handle complicated terrorism cases and protect classified information without compromising the rights of the accused.

“The military commissions have contributed to Guantánamo’s image as an icon of injustice, and the Obama administration should not be perpetuating them. If Guantánamo detainees have committed real crimes, they should be prosecuted in real courts.”

See the following for a sequence of articles dealing with the stumbling progress of the Military Commissions: The reviled Military Commissions collapse (June 2007), A bad week at Guantánamo (Commissions revived, September 2007), The curse of the Military Commissions strikes the prosecutors (September 2007), A good week at Guantánamo (chief prosecutor resigns, October 2007), The story of Mohamed Jawad (October 2007), The story of Omar Khadr (November 2007), Guantánamo trials: where are the terrorists? (February 2008), Six in Guantánamo charged with 9/11 attacks: why now, and what about the torture? (February 2008), Guantánamo’s shambolic trials (ex-prosecutor turns, February 2008), Torture allegations dog Guantánamo trials (March 2008), African embassy bombing suspect charged (March 2008), The US military’s shameless propaganda over 9/11 trials (April 2008), Betrayals, backsliding and boycotts (May 2008), Fact Sheet: The 16 prisoners charged (May 2008), Afghan fantasist to face trial (June 2008), 9/11 trial defendants cry torture (June 2008), USS Cole bombing suspect charged (July 2008), Folly and injustice (Salim Hamdan’s trial approved, July 2008), A critical overview of Salim Hamdan’s Guantánamo trial and the dubious verdict (August 2008), Salim Hamdan’s sentence signals the end of Guantánamo (August 2008), Controversy still plagues Guantánamo’s Military Commissions (September 2008), Another Insignificant Afghan Charged (September 2008), Seized at 15, Omar Khadr Turns 22 in Guantánamo (September 2008), Is Khalid Sheikh Mohammed Running the 9/11 Trials? (September 2008), two articles exploring the Commissions’ corrupt command structure (The Dark Heart of the Guantánamo Trials, and New Evidence of Systemic Bias in Guantánamo Trials, October 2008), The collapse of Omar Khadr’s Guantánamo trial (October 2008), Corruption at Guantánamo (legal adviser faces military investigations, October 2008), An empty trial at Guantánamo (Ali Hamza al-Bahlul, October 2008), Life sentence for al-Qaeda propagandist fails to justify Guantánamo trials (al-Bahlul, November 2008), 20 Reasons To Shut Down The Guantánamo Trials (profiles of all the prisoners charged, November 2008), How Guantánamo Can Be Closed: Advice for Barack Obama (November 2008), More Dubious Charges in the Guantánamo Trials (two Kuwaitis, November 2008), The End of Guantánamo (Salim Hamdan repatriated, November 2008), Torture, Preventive Detention and the Terror Trials at Guantánamo (December 2008), Is the 9/11 trial confession an al-Qaeda coup? (December 2008), The Dying Days of the Guantánamo Trials (January 2009), Former Guantánamo Prosecutor Condemns Chaotic Trials (Lt. Col. Vandeveld on Mohamed Jawad, January 2009), Torture taints the case of Mohamed Jawad (January 2009), Bush Era Ends with Guantánamo Trial Chief’s Torture Confession (Susan Crawford on Mohammed al-Qahtani, January 2009), Chaos and Lies: Why Obama Was Right to Halt The Guantánamo Trials (January 2009), Binyam Mohamed’s Plea Bargain: Trading Torture For Freedom (March 2009).

And for a sequence of articles dealing with the Obama administration’s response to the Military Commissions, see: Don’t Forget Guantánamo (February 2009), Who’s Running Guantánamo? (February 2009), The Talking Dog interviews Darrel Vandeveld, former Guantánamo prosecutor (February 2009), Obama’s First 100 Days: A Start On Guantánamo, But Not Enough (May 2009), Obama Returns To Bush Era On Guantánamo (May 2009), New Chief Prosecutor Appointed For Military Commissions At Guantánamo (May 2009), Pain At Guantánamo And Paralysis In Government (May 2009), My Message To Obama: Great Speech, But No Military Commissions and No “Preventive Detention” (May 2009), Guantánamo And The Many Failures Of US Politicians (May 2009), A Child At Guantánamo: The Unending Torment of Mohamed Jawad (June 2009), A Broken Circus: Guantánamo Trials Convene For One Day Of Chaos (June 2009), Obama Proposes Swift Execution of Alleged 9/11 Conspirators (June 2009), Predictable Chaos As Guantánamo Trials Resume (July 2009), David Frakt: Military Commissions “A Catastrophic Failure” (August 2009),
9/11 Trial At Guantánamo Delayed Again: Can We Have Federal Court Trials Now, Please? (September 2009), Torture And Futility: Is This The End Of The Military Commissions At Guantánamo? (September 2009), Resisting Injustice In Guantánamo: The Story Of Fayiz Al-Kandari (October 2009), Military Commissions Revived: Don’t Do It, Mr. President! (November 2009), The Logic of the 9/11 Trials, The Madness of the Military Commissions (November 2009), Rep. Jerrold Nadler and David Frakt on Obama’s Three-Tier Justice System For Guantánamo (November 2009), Guantánamo: Idealists Leave Obama’s Sinking Ship (November 2009).

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.

Photo/White House photographer Pete Souza

Last Tuesday, in a letter to Illinois governor Pat Quinn, five senior Obama administration officials — Secretary of State Hillary Clinton, Attorney General Eric Holder, Defense Secretary Robert Gates, Director of National Intelligence Dennis Blair, and Secretary of the Department of Homeland Security Janet Napolitano — announced that “the President has directed, with our unanimous support, that the Federal Government proceed with the acquisition” of Thomson Correctional Center, a maximum-security prison about 150 miles north-west of Chicago, to house prisoners from Guantánamo.

In off-the-record briefings, officials suggested that between 35 and 90 of the 198 prisoners still held at Guantánamo would be moved to Illinois, and, in a conference call with reporters, to accompany the release of the letter, two government officials explained that “Thomson is not for individuals who will be tried in US criminal courts. It’s for individuals who will be tried in the military commissions.”

On Thursday, in a memo from the White House to members of the Illinois congressional delegation, the administration elaborated, explaining, “If Thomson is selected, we do not anticipate that any detainees currently at Guantánamo Bay who are transferred to Thomson would be prosecuted in civilian courts. Instead, detainees who will be prosecuted in Federal court would be transferred directly to the jurisdiction where they would be prosecuted.”

With reference to the Military Commissions, the memo stated, “Although a final decision has not yet been made on where reformed military commissions will take place, one option under consideration is to hold military commissions at the detention facility selected for detention. If Thomson is that facility, it has existing space that could be used to try military commission cases as well as significant administrative space and other amenities that could provide support to military commissions.” The authors added, “Detainees prosecuted in reformed military commissions would be held at the same location where they are being tried. If the Thomson facility is selected for such detainees, they would be held securely before, during, and after trial within the facility.”

In Tuesday’s conference call, the two government officials also explained what would happen to two other categories of prisoner. The first are those who, the government hopes, will be “transferred to our friends or allies overseas” — 103 of the prisoners, at the last count, who have been cleared for release by the government’s inter-agency Task Force. These men, the officials explained, will remain at Guantánamo, until arrangements for their release have been negotiated.

Those in the second category, who will also be transferred to the prison in Illinois, subject to Congressional approval, are those who, as President Obama described them in a national security speech in May at the National Archives, “cannot be prosecuted for past crimes, in some cases because evidence may be tainted, but who nonetheless pose a threat to the security of the United States.”

Republicans, predictably, sought to capitalize on the fearmongering that has sustained them throughout most of this year, despite the fact that the prison has largely stood empty since its construction in 2001, and that the plan (which also calls for a new influx of federal prisoners to be housed separately from the Guantánamo prisoners) will bring much-needed jobs to the area. Senate Minority leader Mitch McConnell, for example, complained that the administration had “failed to explain how transferring terrorists to Gitmo North will make Americans safer than keeping these terrorists off of our shores in the secure facility in Cuba,” conveniently forgetting to mention that the government does not need to provide an explanation, because, by 307 to 114 votes in the House, and 79 to 19 in the Senate, lawmakers voted in October to allow prisoners to be brought to the mainland to face trials, as part of a $42.8 billion bill for Homeland Security.

If McConnell’s wailing was rather toothless, critics on the left had more to savage in the plans, seizing on the proposals to transfer prisoners “who cannot be prosecuted … but who nonetheless pose a threat to the security of the United States” as an example of the Obama administration bringing the worst aspects of Guantánamo to the US mainland. In a statement, Amnesty International explained:

The only thing that President Obama is doing with this announcement is changing the Zip Code of Guantánamo. A fundamental principle of the rule of law is that people cannot be held without charge or trial. The founding fathers knew it, the greatest generation fought for it, candidate Obama campaigned for it and the president needs to remember it.

However, although this criticism is certainly accurate with regard to the government’s intent, it does not address whether the administration will be able to achieve its aim. At present, Congress has only approved the transfer to the US mainland of prisoners facing trials, as the government officials who spoke to reporters on Tuesday acknowledged, when they stated that currently “it would be a violation of the law to transfer prisoners to Thomson for the purpose of anything other than prosecution.” They added that, as a result, the administration acknowledges that it “will need some change of law … Ultimately the facility would allow for the detention of some number of detainees who the President outlined in the Archives speech as not being triable either in federal courts or in military commissions.”

It remains far from clear that lawmakers will approve the “change of law” required by the administration to fulfill its plan, and even if Congressional approval is forthcoming, it is not entirely certain that the government has thought out what its proposal actually means.

Despite being inexplicably proud of its plans to hold some prisoners indefinitely without charge or trial, which has been mentioned with alarming regularity since that speech at the National Archives in May, senior officials have generally been reluctant to acknowledge that the majority of the prisoners that it proposes to transfer to Illinois for the rest of their natural lives — around 55, on the basis of the figures bandied about last week — have habeas corpus petitions pending in US District Courts, and that judges may, if the 78 percent success rate to date is anything to go by, grant the petitions of some of these men and order their release.

In its memo on Thursday, the White House finally acknowledged the role of the courts, but only, it appeared, as a supplement to the administration’s right to detain prisoners indefinitely under the Authorization for Use of Military Force (AUMF), enacted by Congress in September 2001, 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 such organizations or persons, in order to prevent any future acts of international terrorism against the United States.” The memo also pointed out that, in Hamdi v. Rumsfeld, in June 2004, the Supreme Court had concluded that “Congress has clearly and unmistakably authorized detention” of individuals covered by this legislation.

As a result, the memo stated that the “interagency review panel is in the final stages of determining the number of detainees who will continue to be held, and for whom no prosecution is planned,” under the AUMF, and tagged on, almost as an afterthought, was the following passage: “In addition, the Supreme Court ruled in Boumediene v. Bush [in June 2008] that all detainees currently held at Guantánamo have the right to file petitions for habeas corpus to challenge their detention in federal court. Detainees will continue to have that right when they are transferred to the United States.”

If, as can be expected, some of these men win their habeas corpus petitions, the administration will then be left holding innocent men — or, at least, men whose guilt cannot be established by a court — in a maximum-security prison with no obvious means of release, especially if, as with dozens of the 103 cleared prisoners already at Guantánamo, they cannot be repatriated because they hail from countries with notoriously poor human rights records, where they face the risk of torture.

Admittedly, this is not necessarily any better or worse than remaining in Guantánamo, but it appears to be an outcome that has not been fully thought out by senior officials, including the President, while they have been banging on endlessly about continuing the Bush administration’s disgusting and disgraceful policy of holding men without charge or trial, and I doubt that it will be as easy as it is in Guantánamo to continue to deprive prisoners cleared by the courts of all rights when they are on US territory.

The government should have thought about all of this months ago, of course, but senior officials seem to have regarded the courts with a Bush-like disdain, preferring to conduct their own inter-agency Task Force review of the prisoners’ cases, and doing nothing to prevent Bush-era lawyers in the Justice Department from continuing the same policy of obstruction in the habeas cases that typified the previous administration.

The result is that, of those 55 cases of proposed indefinite detention, only nine — those who have lost their habeas petitions — have any sort of basis in law. Even in these cases, I doubt that the government will be able to maintain forever that it has the right to hold prisoners indefinitely, when their habeas petitions demonstrated only that they had some sort of tangential or minor connection with either al-Qaeda or the Taliban, but the oddest thing about these nine cases is that they do not seem to have been considered by the government at all.

On Tuesday, in their briefing to reporters, one of the two government officials stated, in response to a question regarding “indefinite detention” from Jake Tapper of ABC News, “The last category which the president suggested may — you called ‘indefinite detention,’ and which the president indicated in his speech at the Archives — we may, in fact, have to address. The fact of the matter is, this review is ongoing. There are no specific cases, to date, that meet that standard that the president has signed off on, and so I don’t want to jump to any conclusions on that.”

This suggests that the administration is not prepared to make a decision about these nine men until the inter-agency Task Force completes its review, indicating that senior officials regard the District Court rulings in these men’s habeas corpus petitions as less significant than the administration’s own, unaccountable Executive review of their cases.

This is actually rather disturbing, because for now these nine men are, at least, detained on a legal basis that has involved the US courts, and are not merely subjected to indefinite detention at the whim of the government, based on eight-year-old legislation passed by Congress in the immediate aftermath of the 9/11 attacks. From my own point of view, I think we actually need to be having a new conversation, to point out that these men should either be prisoners of war, protected by the Geneva Conventions, or terrorists who should be put forward for trials, rather than remaining, essentially, the unique class of human being known as “enemy combatants” — whatever the Obama administration now chooses to call them (“alien unprivileged enemy belligerents” being the latest twist).

As it stands, however, the omission of these men from the government’s statements in the past few days suggests that senior officials think so highly of the AUMF that they not only believe that it authorizes them to bring prisoners to the US mainland and imprison them indefinitely, but have also fooled themselves into thinking that this will do anything meaningful to remove the taint of Guantánamo.

The reason why it was so important to close Guantánamo in the first place was to bring to an end the ruinous and unjust policy of indefinite detention without charge or trial, and it amazes me that President Obama has, apparently, fooled himself into thinking that a sleight of hand that perpetuates the same policy as that established by George W. Bush will be any more acceptable when he is its architect, or that a change of scenery — from Guantánamo Bay to Thomson, Illinois — can help to accomplish such a brazen betrayal of the fundamental values on which the United States was founded.

This report was originally published on the website of the Future of Freedom Foundation.

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

The Iraq war inquiry has insisted that Tony Blair will be questioned “very much in public.”

The statement follows claims that key evidence from the former Prime Minister would be heard behind closed doors.

Newspaper reports claimed Mr Blair’s meetings with US President George W. Bush and details of the decision-making process that led to war would be dealt with in secret on grounds of national security and the need to protect Britain’s relationship with the US.

However, a spokesman for the Chilcot Inquiry said: “Mr Blair will be appearing very much in public and will be questioned in detail on a wide range of issues surrounding Britain’s involvement in Iraq.

“We have said right from the start that he will be a key figure in the inquiry. Mr Blair has said that he is ready and willing to give evidence in public.”

Fouad Mahmoud al-Rabiah

Fouad Mahmoud al-Rabiah, a Kuwaiti national, who was detained at Guantanamo for eight years and tortured in a case of mistaken identity has been freed and was transferred to Kuwait, the Justice Department announced Wednesday.

As directed by President Obama’s Jan. 22, 2009 Executive Order, the interagency Guantanamo Review Task Force conducted a comprehensive review of this case. As a result of that review, the detainee was approved for transfer from Guantanamo Bay. In accordance with Congressionally-mandated reporting requirements, the Administration informed Congress of its intent to transfer the detainee at least 15 days before his transfer.

On Sept. 17, 2009, a federal court ruled that al-Rabiah may no longer be detained under the Authorization for the Use of Military Force and ordered the government to release him from detention at Guantanamo Bay.

According to Reuters:

…al-Rabiah, a Kuwaiti Airways engineer, was captured in Afghanistan and accused by the United States of providing money to Osama bin Laden and helping Taliban fighters in the mountainous Tora Bora region. His lawyers said it was a case of mistaken identity and a district court judge in September ordered Mr. Rabiah freed after determining that confessions to interrogators under harsh conditions were not believable.

Last September, the SCOTUS blog reported:

Of the 38 decisions so far by federal judges implementing the Supreme Court’s mandate in Boumediene v. Bush to test the legality of Guantanamo Bay detentions, the most critical assessment of government evidence has just emerged, in Al Rabiah v. U.S..  Decided on Sept. 17, but just released… in an unclassified version, the 65-page ruling by Judge Colleen Kollar-Kotelly is measured in tone but sweeping in impact.  Despite heavy deletions, blacking out many details, what remains is a withering denunciation of military and intelligence data.  (The opinion can be read here.)

Fully half of the document consists of a detailed examination of a series of confessions given by the detainee, a Kuwaiti national named Fouad Mahmoud Al Rabiah, with the judge ultimately concluding that the government interrogators themselves decided that the admissions were not to be believed.  “Al Rabiah’s interrogators ultimately extracted confessions from him, but they never believed his confessions,” the opinion noted.

Kollar-Kotelly summed up:  ”Far from providing the Court with credible and reliable evidenced as the basis for Al Rabiah’s continued detention, the Government asks this Court to simply accept the same confessions that the Government’s own interrogators did not credit, and to ignore the assessment of [a government intelligence analyst at Guantanamo "that Al Rabiah should not have been detained"].

Kollar-Kotelly also noted in her opinion that she found credible allegations by Al Rabiah and his lawyers that his confessions “were the result of coercion or harsh interrogation techniques, including warnings that he could never return to Kuwait if he did not confess, and that no one would ever leave Guantanamo Bay if they had not confessed to some link to terrorism.”

Al-Rabiah’s transfer was carried out under an arrangement between the United States and the government of Kuwait. The United States will continue to consult with the government of Kuwait regarding this individual, the Justice Department said.

Photo/Wikimedia

So much for the First Amendment.

Morris Davis, the retired Air Force Colonel who served as the Chief Prosecutor of the Military Commissions at Guantánamo from September 2005 until his resignation in October 2007, has just lost his job at the Congressional Research Service (a branch of the Library of Congress) for writing, in his personal capacity, an op-ed for the Wall Street Journal, in which he drew on his wealth of experience of the Commissions to criticize the Obama administration for its decision to prosecute some Guantánamo prisoners in federal courts, and others in Military Commissions.

Davis also wrote a letter to the Washington Post, in which he criticized former Attorney General Michael Mukasey for scaremongering about the administration’s decision to try Guantánamo prisoners in federal courts, and he was admonished for that too.

In a letter dated Nov. 20, Daniel P. Mulhollan, the director of CRS, told Col. Davis that he had not shown “awareness that your poor judgment could do serious harm to the trust and confidence Congress reposes in CRS,” and notified him that he would not be kept on after his one-year probationary period at CRS ends on Dec. 21.

The ACLU immediately stepped in, sending a letter on Friday to Dr. Jim Billington, the Librarian of Congress, arguing that “CRS violated the First Amendment when it fired Davis for speaking as a private citizen about matters having nothing to do with his job there, and that CRS must reinstate Davis to his position in order to avoid litigation.”

Aden Fine, staff attorney with the ACLU First Amendment Working Group, said, “The First Amendment protects Col. Davis’s right to speak and write as a private citizen about issues on which he has personal knowledge. Col. Davis didn’t give up his right to express his opinions and first-hand knowledge about a matter of such public importance when he left the military commissions system and went to work at CRS.”

In correspondence over the weekend, Col. Davis reinforced the ACLU’s views, explaining:

I am the head of the Foreign Affairs, Defense, and Trade Division at the Congressional Research Service (one of five CRS research divisions) at the Library of Congress.  My division does not now nor has it ever had responsibility for providing Congress with advice on military commissions; that responsibility resides with the American Law Division … The Library of Congress has a regulation on outside activities for staff and it “encourages” outside writing and speaking on topics outside the staff member’s area of responsibility and the Congressional Research Service has a similar policy … In short, it was clear that I was prohibited from expressing my opinions publicly on matters within my area of responsibility, but I believe I retained the same right as all citizens to express opinions on matter outside the scope of my official duties.

He added:

The First Amendment guarantees the right of free speech and the Supreme Court has long recognized that public employment does not override that right (although regulation of speech is permissible when related to an employee’s official duty … and as noted, I have absolutely no official duty connected to military commissions). It is ironic that our offices are located in the James Madison Building, which is named for the “Father of the Constitution” and the primary architect of the Bill of Rights who led the effort to secure the right of free speech. I suspect Mr. Madison would be surprised to learn that the right he cherished is denied those working in the building that bears his name.

Morris Davis and the ACLU are right, of course, and I hope that Davis is reinstated. Even aside from the fact that he should be entitled to express his personal opinions under his First Amendment rights, it is difficult to see how his published comments could possibly be construed as demonstrating “poor judgment” that “could do serious harm to the trust and confidence Congress reposes in CRS.”

In his Wall Street Journal article on November 10, for example, Col. Davis stated only that the administration’s decision to try some prisoners in federal court and others in Military Commissions was “a mistake.” As he explained, “It will establish a dangerous legal double standard that gives some detainees superior rights and protections, and relegates others to the inferior rights and protections of military commissions. This will only perpetuate the perception that Guantánamo and justice are mutually exclusive.”

And in his letter to the Washington Post, he chided former AG Mukasey for claiming that the decision to try prisoners in federal courts “comes down to a choice between protecting the American people and showcasing American justice,” and also for implying that the Commissions were “essential to keep detainees from returning to terrorism.” As he added, “The Geneva Conventions permit detaining the enemy during armed conflicts to prevent them from causing future harm. Criminal trials punish past misconduct. Suggesting that the choice is either criminal prosecution or freedom is false.”

Ironically (given his subsequent treatment), Col. Davis’s comments about the Commissions were actually rather constructive, as he pointed out that the administration “could legitimately choose to prosecute detainees in either forum — federal courts or military commissions — and satisfy its legal obligations,” noting only that “The problem is trying to have it both ways.” He also explained, “It is not as if double-standard justice is required to keep suspected terrorists off our streets. Those detainees who cannot be prosecuted can still be detained under rules the administration approves — likely in the next several months — for the indefinite detention of those who pose a threat to us during this ongoing armed conflict.”

Jut as ironic is the fact that Davis’s dismissal follows nearly a year at CRS in which he has, in fact, been the soul of discretion regarding his former role as the Chief Prosecutor of the Commissions, the politicization that drove him to resign, and the comments he made in February 2008 that led to the immediate resignation of William J. Haynes II, the Pentagon’s Legal Counsel, even though countless journalists (myself included) would dearly love to talk to him about these matters.

Arguably, no one knew more — or, at least, felt more keenly — the politicization of the Commission process in 2007, after the system was revived by Congress in the fall of 2006 (following a Supreme Court ruling in June 2006, which found that it violated both the Geneva Conventions and the Uniform Code of Military Justice).

Detailed accounts of Davis’ resignation — and his subsequent explanations of his reasons for doing so, which strike at the heart of the Bush administration’s torture regime, and its attempts to prosecute the victims of torture over Davis’s objections — can be found, in particular, in my article, “The Dark Heart of the Guantánamo Trials,” but to conclude this account with a concise explanation, it is worth noting the following passages taken from that article:

[I]n a blistering op-ed in the Los Angeles Times, two months after his resignation, Col. Davis stated, “I was the chief prosecutor for the military commissions at Guantánamo Bay, Cuba, until Oct. 4, the day I concluded that full, fair and open trials were not possible under the current system. I resigned on that day because I felt that the system had become deeply politicized and that I could no longer do my job effectively or responsibly.”

[Col. Davis] explained that the particular trigger for his decision was [a] memo … informing him that he had been placed in a chain of command under Haynes. Stating that he resigned “a few hours after” being informed of this, he mentioned that “Haynes was a controversial nominee for a lifetime appointment to the US 4th Circuit Court of Appeals, but his nomination died in January 2007, in part because of his role in authorizing the use of the aggressive interrogation techniques some call torture.” He added, “I had instructed the prosecutors in September 2005 [shortly after taking the job] that we would not offer any evidence derived by waterboarding, one of the aggressive interrogation techniques the administration has sanctioned.”

In February 2008, Col. Davis told Ross Tuttle of the Nation about a conversation he had with Haynes in August 2005:

“[Haynes] said these trials will be the Nuremberg of our time,” recalled Davis, referring to the Nazi tribunals in 1945, considered the model of procedural rights in the prosecution of war crimes. In response, Davis said he noted that at Nuremberg there had been some acquittals, which had lent great credibility to the proceedings.

“I said to him that if we come up short and there are some acquittals in our cases, it will at least validate the process,” Davis continued. “At which point, [Haynes's] eyes got wide and he said, ‘Wait a minute, we can’t have acquittals. If we’ve been holding these guys for so long, how can we explain letting them get off? We can’t have acquittals. We’ve got to have convictions.’”

This, I’m sure you’ll agree, is far more explosive than Col. Davis’s op-ed and letter regarding the Military Commissions, but even had he chosen to talk about these matters, he should have been free to do so. The fact that he has not is a loss for those of us who wish to see the Bush administration held accountable for its crimes (and who are keen to follow the chain of command from Haynes, via Susan Crawford, the Commissions’ Convening Authority, to Dick Cheney and David Addington), but it also provides another demonstration that, when it came to exercising his freedom of speech whilst employed by the CRS, Col. Davis had no intention of demonstrating “poor judgment” at all.

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.

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

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

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

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

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