Since the last
blowout at Guantánamo on December 8, when dozens of reporters and relatives
of victims of the 9/11 attacks watched as Khalid
Sheikh Mohammed (KSM) and his alleged co-conspirators tried and
failed to plead guilty so that they could die martyr's deaths, few observers
have witnessed the Commissions go through the motions in the Bush administration's
last days, like a preprogrammed machine, unaware that major changes are afoot,
or, less charitably, like a decapitated chicken on its last round of the farmyard.
"We serve the sitting president and will continue to do so until the president-elect
is inaugurated, at which time we will implement whatever policies are enacted
by the next president," Navy Cmdr. J.D. Gordon, a Pentagon spokesman, explained
An ignoble history
The Military Commissions have rarely attracted
the media attention that a novel, flagship program to try "terror suspects"
should have attracted, even though the administration has persistently tried
to sell Guantánamo as a place full of the world's toughest terrorists, rather
it really is: a place where a few dozen members of a small, fanatical
and deeply secretive terror network have been vastly outnumbered by Taliban
foot soldiers, recruited to fight an inter-Muslim civil war in Afghanistan that
began long before 9/11 and had no connection to al-Qaeda or the 9/11 attacks,
or completely innocent men, sold for bounty payments by the United States' opportunistic
allies in Afghanistan and Pakistan.
The rot was there from the beginning, as military defense lawyers, appointed
by the government, realized
to their horror that the Military Commissions were designed to secure
convictions and to facilitate the use of evidence obtained through torture.
The entire system should have died in June 2006, when the Supreme Court ruled
it illegal, but when Congress revived the monster that fall, its newfound legitimacy
was soon punctured when the first prisoner to face a trial, the Australian David
Hicks, was repatriated in May 2007 following a plea bargain negotiated
by Vice President Dick
Cheney as a political favor to his ailing ally, Prime Minister John
Such cynicism has always been readily apparent when it comes to releasing prisoners
from the general population, but for the first trial by Military Commission
to be undermined in such a manner appeared to take hypocrisy to a new level,
even though a trial, had it proceeded, would have been hard-pushed to present
Hicks as a terrorist. Hyperbole of this kind was possible in the early days
of the "War on Terror," when the "American Taliban" John
Walker Lindh received a 20-year sentence, but as John Howard found to
his chagrin, by 2007 the public was less willing to indulge such hyperbole.
As I discovered while writing The
Guantánamo Files, far from being caught on the battlefield, Hicks
was actually betrayed by an Afghan van driver as he fled northern Afghanistan,
trying in vain to hide his blue eyes and blond hair, and was then brutalized
mercilessly in US hands.
In the last seven months, as the Bush administration sought to construct a
"War on Terror" legacy that would not consist solely of hubris and
ridicule, the pressure on the Commissions to press ahead with trials intensified.
To a small degree, the ploy was successful. The arraignment and pretrial hearings
of KSM et al. attracted widespread attention in June,
and December, and the trial
of Salim Hamdan, a driver for Osama bin Laden, also drew a flurry of
interest in the summer although this was largely mitigated when Hamdan
received an extraordinarily
lenient sentence (freeing
him by the end of the year), which effectively destroyed Guantánamo's
There was further
bad news in September, when, as a result of his crusading pro-prosecution
bias, the Commissions' legal adviser, Brig. Gen. Thomas Hartmann, was sacked
after being disqualified by three military judges, and Lt. Col. Darrel Vandeveld,
a prosecutor and a previously staunch supporter of the regime, resigned after
seeking advice from a Jesuit peace activist, and left cursing the administration
for its deliberate suppression of evidence vital to the defense in the case
of the Afghan prisoner Mohamed
Jawad. Although Jawad was accused of a grenade attack on a jeep containing
US soldiers, it transpired that he was a juvenile when seized, was drugged at
the time of the attack by the insurgents who had tricked him into being recruited,
and had been tortured in Afghan custody until he confessed. One of Vandeveld's
discoveries was that two other men, neither of whom is held at Guantánamo, had
also confessed to the attack.
However, while these stories were widely reported and there was also
sporadic interest in the baleful saga of the Canadian Omar
Khadr, the other juvenile facing a trial by Military Commission
the media as a whole (with the valiant exceptions of the Miami Herald's
Carol Rosenberg, the Toronto Star's Michelle Shephard and Jane Sutton
of Reuters) showed little appetite for covering the cases of the other
16 prisoners put forward for trial. This ability to find almost anything
else more newsworthy was aptly demonstrated on the eve of the Presidential election
when a prisoner named Ali
Hamza al-Bahlul received a life sentence ostensibly to be served
in Guantánamo in total isolation after a one-sided show trial in which,
under the Commissions' deeply flawed rules, he had been allowed to mount no
Derailing the cases of Mohamed Jawad and Omar Khadr
Just two days after the last appearance of the
KSM circus, when most of the reporters had gone home, Army Col. Stephen Henley,
the judge in Mohamed Jawad's case, "indefinitely delayed" Jawad's
trial, as Jane
Sutton explained. The trial had been scheduled to begin on January 5,
but Henley gave the prosecution an unspecified amount of time to work out how
to appeal his earlier decision to exclude the confession obtained by the Afghan
authorities shortly after Jawad's capture in Kabul in December 2002, because
it was "obtained through death threats that constituted torture,"
confession, which he made to US interrogators the following day, because
that too was the "fruit of that torture." Whether the prosecution
can come up with any further evidence is doubtful. As Lt. Col. Vandeveld explained
in November, Jawad's confession to Afghan officials was "among the most
important evidence for his upcoming war crimes trial." Vandeveld added,
"To me, the case is not only eviscerated, it is now impossible to prosecute
with any credibility."
Two days later, on December 12, there was a further shock in the case of Omar
Khadr. Although the US government has always claimed that Khadr was responsible
for throwing a grenade that killed US Sgt. Christopher Speer during the firefight
that led to Khadr's capture in Afghanistan in July 2002, it was revealed in
November 2007 just 36 hours before Khadr's trial was supposed to begin
that a previously undisclosed "US government employee," who
was an eyewitness to the gunfight, had "potentially exculpatory evidence"
proving that another man was alive at the time, and that this other man may
have thrown the grenade.
pretrial hearing in March last year, Khadr's military defense lawyer,
Lt. Cmdr. William Kuebler, revealed that the report of the circumstances that
led to Khadr's capture, written by an officer identified only as "Lt. Col.
W.," had been altered after the event to implicate Khadr, and on December
12 another witness, identified only as "Soldier No. 2," produced further
evidence indicating that Khadr could not have thrown the grenade, explaining,
Shephard described it, that the teenager "was buried under rubble
from a collapsed roof before he was captured."
In a motion submitted by Khadr's lawyers, the soldier explained that he "thought
he was standing on a 'trap door' because the ground did not seem solid."
He then "bent down to move the brush away to see what was beneath him and
discovered that he was standing on a person; and that Mr. Khadr appeared to
be 'acting dead.'" Speaking to reporters, Lt. Cmdr. Kuebler explained
that photographs taken at the scene, which were not shown to observers of the
trial proceedings, "show a pile of rubble from the collapsed roof, and
then show the debris moved aside to reveal Khadr lying facedown in the dirt,"
which "make it abundantly clear Omar Khadr could not have thrown the hand
grenade that killed 1st Sgt. Speer."
A new chief judge
As prosecutors vowed to press ahead with Khadr's
trial on January 26, brushing off the defense team's perennial cry that juveniles
should not be prosecuted for war crimes, and apparently secure that
they have other evidence of Khadr making and planting roadside bombs in Afghanistan
which will prove that he "knowingly" carried out crimes, the next
example of the Commissions' blinkered view of reality came on December 15, when
the Pentagon announced that Army Col. James Pohl, who had presided over the
courts martial of several soldiers in the Abu
Ghraib scandal, had been appointed as the new chief judge.
Pohl replaced Marine Col. Ralph Kohlmann (whose retirement plans had enabled
KSM to mock him for his lack of commitment in September), and had already established
himself as an independent-minded judge at Guantánamo. As Carol
Rosenberg explained, in March, he "sternly informed" prosecutors
in the case of Ahmed al-Darbi, a Saudi seized in Azerbaijan and accused of "plotting
a never-realized attack on an unnamed ship in the Strait of Hormuz," that
defense lawyers "should have easy access to their clients." Lawyers
for the 33-year old father of two maintain that al-Darbi was tortured in US
custody and that the government's allegations are reliant on 119 self-incriminating
Col. Pohl also refused to endorse a request from prison commanders to approve
violent "Forced Cell Extractions" when prisoners refused to come to
the courtroom, and on his first day in his new job, at a pretrial hearing for
al-Darbi, allowed the Saudi to make an appeal to Barack Obama. "Waving
a copy of an American Civil Liberties Union poster with a pensive Obama and
his campaign's closure pledge on it," as Rosenberg
explained, al-Darbi said, "I hope this location will be closed as he promised.
He will earn back the legitimacy the United States has lost as a world leader."
This was the last hearing before the eve of Barack Obama's inauguration, when
final pretrial hearings are supposed to begin in Omar Khadr's case, and a mental
competency hearing is scheduled for alleged 9/11 co-conspirator Ramzi bin al-Shibh,
but although Col. Pohl acknowledged that he was "aware that on Jan. 20
there will be a new commander-in-chief, which may or may not impact on these
proceedings," he advised everyone connected with the Commissions to stay
focused "unless and until a competent authority tells us not to."
While this was a fair warning, Col. Pohl's awareness of political realities
was not reflected elsewhere in the Pentagon, nor, I suspect, in the Office of
the Vice President, where, as I explained in my
article in October that also looked at the sacking of Brig. Gen. Hartmann
and the resignation of Lt. Col. Vandeveld, the architects of the Commissions
Dick Cheney and his chief of staff David Addington seem determined
to continue playing out their deranged fantasies until the moment they leave
A new prisoner is charged: the story of Tarek El-Sawah
On December 16, just as three Bosnian Algerians
flew home from Guantánamo, after Judge Richard Leon, a Bush appointee, threw
their cases out of his habeas court for lack of evidence, the Pentagon
announced that another Bosnian prisoner, Tarek El-Sawah (aka Tariq al-Sawah),
a 51-year old originally from Egypt, was the 27th prisoner to be
put forward for trial by Military Commission. The Pentagon also reinstated the
against the Sudanese prisoner Noor Uthman Muhammed, allegedly the deputy emir
of the Khaldan training camp, which had been dropped
In El-Sawah's charge sheet (pdf),
in which he was charged with conspiracy and providing material support for terrorism,
it was alleged that, between October 2000 and November 2001, he had trained
at al-Farouq (the main training camp for Arabs in the years before the 9/11
attacks), had taught "the fundamentals of how to use explosives to members
of al-Qaeda, the Taliban and others," and had "developed and successfully
tested a remote controlled limpet mine for use against US warships" at
the Tarnak farms training camp, which he had undertaken "at the direction
of a member of al-Qaeda's Shura Council." It was also alleged that he had
written a 400-page manual on bomb-making, and had fought against US and coalition
forces in the Tora Bora mountains, until he was wounded and captured.
How much truth there is to these charges is difficult to ascertain. El-Sawah
was certainly a militant, but in 2004, at his only appearance before a tribunal
at Guantánamo, there was no mention of the bomb-making manual or the limpet
mine, and he insisted that both his military commitment and the training
he briefly gave to others in August 2001 was directed exclusively at
the Northern Alliance.
El-Sawah explained that he had traveled to Bosnia as an aid worker in 1992,
had married a Bosnian woman and had only gone to Afghanistan to see if it was
suitable place to take his family. Once there, however, he clearly succumbed
to the most virulent Taliban propaganda against Ahmed Shah Massoud, the leader
of the Northern Alliance, who was assassinated by al-Qaeda agents on September
9, 2001. He told his tribunal, "One time in a jihad, Massoud killed about
10,000 Muslims in an hour." Reiterating that it was his intention solely
to support those who were being oppressed by the Northern Alliance, he said,
"There are no rules in the United States to prevent it if you want to fight
for religion. There are no rules to direct me not to defend people." He
also pointed out that he went to Afghanistan to fight the Northern Alliance
before 9/11, when it was no business of the Americans, and asked, "If Massoud
and Dostum are American allies, they were not an alliance before September 11th,
El-Sawah also denied an allegation that he had admitted being a member of al-Qaeda,
denied an allegation that he met Osama bin Laden, saying that he saw him once
at a meeting of about 250 people, but had no opportunity to actually meet him,
and also denied an allegation that he had engaged in hostilities against the
United States. In a comment that cut to the heart of what was essentially a
proxy war, fought by Afghans with US air support, he said, "There was no
fighting against Americans. If there were any American soldiers saying they
were fighting in Afghanistan, bring them here to me and show the evidence."
He also explained that he was sold for money, telling his tribunal, "because
the Americans offered $5,000 to anyone who captured us, they [the Northern Alliance]
were fighting us and they kept us alive to get the $5,000," and gave a
poignant description of his departure from Jalalabad into the Tora Bora mountains,
in which he emphasized that the war in Afghanistan and the fall of the Taliban
had triggered an exodus of all kinds of people, not just al-Qaeda and Taliban
fighters. "We left everything," he said. "We were moving through
mountains and caves; there were hundreds of families, children, women and people
were climbing through the mountains. What were we to do? Some people were escaping
from other fronts, near Jalalabad and Kabul. There were too many people there."
Charges referred in the case of torture victim Abdul Rahim
The administration's final gesture, before the
Christmas break, was for Susan Crawford, the Commissions' "Convening Authority"
and a close friend of both Dick Cheney and David Addington to
the charges that were filed last July against Abdul
Rahim al-Nashiri. A Saudi, and one of 14 "high-value detainees"
transferred to Guantánamo from secret CIA prisons in September 2006, al-Nashiri,
who was seized in the United Arab Emirates in November 2002, was charged for
his alleged role in the attacks on the USS The Sullivans and the USS
Cole in 2000, and the French tanker Limburg in 2002.
Al-Nashiri faces the death penalty if convicted, although his trial, should
it proceed, will undoubtedly be complicated by the fact that he is one of three
"high-value detainees" whom CIA director Michael Hayden admitted last
February had been subjected to waterboarding
in secret CIA custody. In his tribunal at Guantánamo in 2007, al-Nashiri made
a point of mentioning that he had made up false confessions after being tortured.
"From the time I was arrested five years ago," he said, "they
have been torturing me. It happened during interviews. One time they tortured
me one way, and another time they tortured me in a different way. I just said
those things to make the people happy. They were very happy when I told them
Charges dropped against Abdul Ghani, a minor Afghan insurgent
On the same day that the charges against al-Nashiri
were confirmed, there was better news for Abdul
Ghani, an Afghan prisoner put forward for trial at the end of July.
Without providing any explanation, Susan Crawford dismissed the charges "without
prejudice," which meant, as the Pentagon explained, "that the government
has the option of charging Ghani at a later date," but it would surely
be better for the 36-year old to sent back to Afghanistan instead, where the
Afghan authorities can work out if he actually constitutes a threat.
At best a minor Afghan insurgent, Ghani was charged with firing rockets at
US forces, planting "land mines and other explosive devices on more than
one occasion for use against US and coalition forces," attacking Afghan
soldiers, and "accept[ing] monetary payments, including payment from al-Qaeda
and others known and unknown, to commit attacks on US forces and bases."
As I wrote at the time, however, "Apart from the inclusion of the magic
words 'al-Qaeda,' there was nothing in Abdul Ghani's charge sheet to indicate
that he should find himself in the same trial system as those accused of involvement
in the 9/11 attacks, the African embassy bombings of 1998 or the bombing of
the USS Cole in 2000, or even, in fact, that he should have been sent
to Guantánamo at all."
Time for change
With less than two weeks until Dick Cheney and
David Addington are obliged to leave the White House, when a new broom will
also no doubt sweep the corridors of the Pentagon, it remains possible that
the architects of the Commissions will indulge in a final round of last-minute
tinkering, hoping that their failed experiment will live on, but for the rest
of us, Barack Obama's inauguration cannot come soon enough, nor, indeed, can
of a promise that he made in August 2007:
"As President, I will close Guantánamo, reject the Military Commissions
Act, and adhere to the Geneva Conventions. Our Constitution and our Uniform
Code of Military Justice provide a framework for dealing with the terrorists
… The separation of powers works. Our Constitution works. We will again set
an example to the world that the law is not subject to the whims of stubborn
rulers, and that justice is not arbitrary."