February 9, 2008
Guantánamo Trials: Where Are The Terrorists?
by Andy Worthington
As pre-trial hearings take place in the US prison complex at Guantánamo
Bay, Cuba, Andy
Worthington, author of The Guantánamo Files: The Stories of the 774
Detainees in America’s
Illegal Prison, looks at the stories of the three defendants whose cases
are being heard this
week and next – two alleged "child soldiers," and a driver for Osama bin
Laden – and wonders
what happened to the real terrorists.
According to a re****t by Jane Sutton of Reuters, the US military has spent
$12 million on a
mobile court complex – including prefabricated holding cells ****pped to
the prison by barge and
cargo plane – which is intended to be used for the trial by Military
Commission of up to 80
detainees, beginning in May. As Sutton describes it, the new court
building, which "looks like
a khaki-colored metal warehouse on the outside and a traditional courtroom
inside," has "enough
room to simultaneously try up to six prisoners, lined up on faux-leather
chairs at
cherry-veneer tables."
Known as Camp Justice – a name that will, no doubt, be pilloried by the
many critics of the
Commissions, who claim that justice is the last thing that the trials will
provide – Canada.com
re****ts that the complex was built by the Indiana National Guard, who
"marked the entrance sign
with the date September 11, 2007." In what is described as "an obvious
9/11 reference," Colonel
Wendy Kelly, Director of Operations for the Military Commissions,
explained, "It's ironic, but
that's when they started construction."
What is perhaps more ironic is that, despite the 9/11 references, and the
fact that Guantánamo
was, from its inception over six years ago, intended to hold and try those
responsible for the
9/11 attacks, none of the defendants is accused of direct involvement in
the events of that
terrible day.
Omar Khadr
The first defendant to face pre-trial hearings was Omar Khadr, who is
accused of murder in
violation of the rules of war, attempted murder in violation of the rules
of war, conspiracy,
providing material sup****t for terrorism, and spying. Khadr, whose father
was an alleged
financier for al-Qaeda, is at least tangentially connected to Osama bin
Laden and the events of
9/11, having spent some of his childhood in a compound in Afghanistan that
his family shared
with bin Laden’s family. There, however, the connection ends, as what he
is actually charged
with centers on his alleged responsibility for the killing of a US soldier
during a firefight
in Afghanistan in July 2002.
Khadr’s defense team, led by Lt. Cmdr. William Kuebler, have long insisted
that, as a "child
soldier," who was just 15 years old at the time of his capture, Khadr
should not be subjected
to a trial at all. As they stated in a brief submitted to the judge, Col.
Peter Brownback, "If
jurisdiction is exercised over Mr. Khadr, the military judge will be the
first in western
history to preside over the trial of alleged war crimes committed by a
child. No international
criminal tribunal established under the laws of war, from Nuremberg
forward, has ever
prosecuted former child soldiers as war criminals."
This was one of the main points Khadr’s lawyers made during Monday’s
hearing, and in this –
along with repeated calls for the Canadian government to act on Khadr’s
behalf – they were
backed up by an array of international bodies, including, in the last week
alone, UNICEF, the
French government, and the collective weight of Human Rights Watch,
Amnesty International, the
Coalition to Stop the Use of Child Soldiers, and Human Rights First.
Just as significantly, Khadr’s lawyers are also challenging the very
substance of the war
crimes charges against their client, arguing, as civilian lawyer Rebecca
Snyder explained on
Monday, that Khadr is "not eligible to be tried for murder as a war crime
because the alleged
offense occurred during a firefight under traditional rules of war."
"Soldiers are not
protected targets," she told the hearing. "That is part of what war is
about, killing soldiers."
The most explosive revelation in the hearing, however, which threatens to
derail the entire
trial, only surfaced when the authorities mistakenly released a classified
do***ent to
re****ters attending the hearing. At Khadr’s last hearing, in November,
Judge Brownback
prevented the prosecution from showing a video, retrieved from the
compound, which pur****tedly
showed Khadr making and planting roadside explosives, for the express
purpose of allowing the
defense to examine new and "potentially exculpatory" evidence, previously
concealed from the
defense team.
The evidence, we were told at the time, came from a "US government
employee," who was an
eyewitness to the firefight that led to Khadr’s capture. The details were
not revealed, but
Carol Williams of the Los Angeles Times was emboldened enough to re****t
that the account
"contradicts the government version of events and could exonerate Khadr of
the war crimes with
which he is charged."
On Monday, the truth about this "potentially exculpatory" evidence,
revealed in an error that
is typical of the farcical episodes that regularly threaten to undermine
the Commissions’
credibility, more than backed up Carol Williams’ claims.
According to Michelle Shepherd of the Toronto Star, who got the story out
first, Khadr was not
the only person left alive when the grenade was thrown that killed Sgt.
Christopher Speer. In
an interview, a soldier who shot Khadr twice in the back explained that he
"heard moaning
coming from the back of the compound. The dust rose up from the ground and
began to clear. He
then saw a man facing him lying on his right side. The man had an AK-47 on
the ground beside
him and the man was moving. OC-1 [the soldier] fired one round striking
the man in the head and
the movement ceased. Dust was again stirred by this rifle shot. When the
dust rose, he saw a
second man sitting up facing away from him leaning against the brush. This
man, later
identified as Khadr, was moving ... OC-1 fired two rounds, both of which
struck Khadr in the back."
The re****t continued by stating that OC-1 "felt" that it was Khadr who
threw the grenade:
"Based on his extensive combat experience, OC-1 believed Khadr and the man
at the back of the
alley with the AK rifle were the only two alive at the time of the
assault. He felt ... the
grenade was thrown by someone other than the man who was firing the
rifle."
Shepherd re****ted that "controversy erupted" following the accidental
release of the do***ent,
and that, for an hour and a half, there was a stand-off between the
authorities, who wanted the
do***ent returned, and the journalists, who refused. While this was
obviously damaging enough
from the point of view of publicity, she also made the more significant
observation that, "If
the do***ent had not been released by mistake it would not have been made
public, leaving some
to question the Pentagon's assertion that the Guantánamo trials will be
transparent."
"There's no openness about this process," Lt. Cmdr. Kuebler explained.
"It's not that the
government shouldn't be able to protect information when there is a
legitimate need to protect
it. It's the government's overuse of classification ... that basically
keeps 100 per cent of
the evidence in the case outside of the public's view except if the
government decides to sort
of dribble it out to you."
Col. Brownback has not yet delivered his verdict on this latest
revelation, but the Toronto
Star made its position clear on Tuesday morning in an editorial. "Khadr is
a poor poster boy
for human rights," the editors stated. "But he is a Canadian citizen who
faces a military
tribunal that does not meet American or Canadian standards of criminal
justice. If convicted in
Canada even of planned, deliberate murder, under the Youth Criminal
Justice Act Khadr would
have faced no more than six years in custody. By July 27, he will have
spent six years in the
Guantánamo brig. In Canadian terms, he will have served a full sentence
for a crime for which
he has not yet been tried, much less convicted. This is indecent. Few
Canadians have sympathy
for Khadr and his family. But what is happening in Guantánamo is not
justice. It is
vindictiveness. And the Harper government's acquiescence is profoundly
disturbing. Before
Canada suffers yet more embarrassment, Khadr should be ****pped back home,
under a bond to keep
the peace."
Mohammed Jawad
If the thin case against Omar Khadr has only grown thinner after Monday’s
revelation, the case
against the second alleged "child soldier," Mohamed Jawad, is thinner
still. Jawad, whose
pre-trial hearing is scheduled to begin next week, is less well-known than
Khadr, although I
wrote a detailed article about him when the charges against him were first
announced in October.
Just 17 years old at the time of his capture, Jawad, who was born to
Afghan refugees in
Pakistan, is not even accused of killing anyone, and is, instead, accused
of attempted murder
in violation of the law of war, and intentionally causing serious bodily
injury, for his
alleged role in a grenade attack on a vehicle carrying two US soldiers and
an Afghan translator
in December 2002.
Throughout his detention, Jawad has denied the allegations. In his
Administrative Review Board
in 2005, he insisted that he had been brought to Afghanistan from Pakistan
to clear mines, and
gave a long story about how he had ended up at the site of the attack with
another man, who had
actually thrown the grenade, whereas he had been given another grenade,
but had been left
unattended in the market. As I explained in my article, Jawad said that,
"while shopping for
raisins, he took the grenade out of his pocket and put it on the sack of
raisins, but that when
the shopkeeper saw it he ‘told me it was a bomb and that I should go and
throw it in the river.
I put the thing back in my pocket and I was running and shouting to stay
away, it's a bomb!
When I got close to the river, people [the police] caught me.’"
As I also explained in October, whether Jawad was directly involved in the
attack or not, "the
decision to prosecute a teenager, who had no connection whatsoever with
al-Qaeda, and who, at
best, was a minor Afghan insurgent," appeared, after nearly six years of
chest-thumping claims
that Guantánamo houses "the worst of the worst," to be "both desperate and
risible."
Salim Hamdan
The third defendant, whose case resumed on Thursday, is Salim Hamdan, a
Yemeni who was one of
Osama bin Laden’s drivers. While this too connects him to al-Qaeda, there
are doubts as to
whether, as the prosecution claims, he was involved in any of al-Qaeda’s
plans. Lt. Cmdr.
Charles Swift, Hamdan’s first military lawyer, who was passed over for
promotion and
essentially lost his job as a result of his vigorous defense of Hamdan
(which led to the
Supreme Court’s ruling against the Commissions in June 2006), certainly
thought that there was
little evidence against him when he first took up his case in 2003.
Last March, he told Marie Brenner of Vanity Fair, "He had never been
involved in any shootings
or real violence. OK, so he was a driver for one of the worst men on
earth. All that really
links him is that he worked for a motor pool … I thought, I can work with
this." Extrapolating
a little from Swift’s argument, it is, I think, perfectly valid to regard
the focus on Hamdan
in the Commissions as equivalent to hauling up Hitler’s driver alongside
Hermann Goering and
Rudolf Hess at the Nuremberg Trials.
While Hamdan’s case, like that of Omar Khadr, has attracted significant
media attention over
the years, his mental state has generally been overlooked, although this
omission has now been
corrected in the brief filed by Swift’s replacement, Major Thomas
Roughneen and his team. As
well as refuting allegations that he was anything more than a hired
driver, who, as Carol
Rosenberg described it in the Miami Herald, was working "for an income,
not ideology," his
lawyers are arguing that the father of four, who has never seen his
youngest daughter – and has
been prevented from seeing DVDs of her, which were made by his family – is
unfit to stand
trial, because of the deterioration in his mental health.
In pursuit of this claim, they secured the services of Emily Karam, a
clinical and forensic
psychiatrist, who spent 70 hours with Hamdan in Guantánamo. Dr. Karam
concluded that after each
meeting he "met diagnostic criteria for Post Traumatic Stress Disorder and
Major Depression,"
including "nightmares, intrusive thoughts, memories and images, amnesia
for details of
traumatic events, lack of future orientation, anxiety, irritability,
insomnia, poor
concentration and memory, exaggerated startle responses, and
hypervigilance."
"At times," she added, "his symptoms impaired his ability to participate
in the evaluation,"
and she also noted that his symptoms "were severely exacerbated by his
incarceration in
solitary confinement." Dr. Karam’s conclusion was that "Mr. Hamdan is
unable to materially
assist in his own defense," and she warned that, if he remains in solitary
confinement, "his
condition will deteriorate and he will be at risk of developing more
serious psychological
symptoms."
It is, however, a note by Andrea Prasow, one of Hamdan’s defense lawyers,
that raises more
fundamental questions about the Military Commissions, which are not
generally being asked, even
though the tawdry spectacle of the combined weight of the US military
being focused on two
children and one of bin Laden’s drivers should make this oversight
abundantly clear: where, in
this whole surreal farce, are the real terrorists?
In a submission arguing that Hamdan’s detention in Camp VI – the most
recent camp for
Guantánamo’s general population, in which the detainees are held in almost
total isolation – is
causing him to become so "emotionally distraught and withdrawn" that it is
"materially
interfering with our ability to prepare [his] defense," Prasow notes, "Mr.
Hamdan is aware that
Omar Khadr … and Ibrahim al-Qosi, who was charged under the previous
commission system, are
held in Camp IV." One of the older camps, Camp IV is the least brutal of
Guantánamo’s cell
blocks, where the relatively small number of detainees share communal
dorms, and are allowed to
take part in s****ts, but it is Hamdan’s reference to Ibrahim al-Qosi that
is particularly
significant.
The Real Terrorists?
Al-Qosi, a Sudanese detainee, is one of seven other alleged al-Qaeda
operatives charged in the
first round of Military Commissions (between 2003 and 2005, before they
were derailed by the
Supreme Court), when, it was claimed, he had worked as the deputy for
al-Qaeda’s financial
chief, Sheikh Sayyid al-Masri, had been financed by Osama bin Laden to
fight in Chechnya in
1995, and had worked as a bodyguard, driver, supplies manager and cook for
bin Laden from 1996
until his capture in December 2001, as he attempted to cross the border
from Afghanistan to
Pakistan.
In spite of this array of charges, however, neither he nor the other six
supposedly significant
al-Qaeda members – who include at least two who have proclaimed their
member****p of al-Qaeda –
have yet been charged under the new system, even though, as Hamdan clearly
feels, and observers
might also conclude, there is possibly more of a case to be made against
at least some of these
men.
Even more obvious cases for prosecution, of course, are some, or all of
the 14 "high-value"
detainees who were transferred to Guantánamo from secret CIA prisons in
September 2006. They
include Khalid Sheikh Mohammed, the self-confessed architect of 9/11,
alleged senior al-Qaeda
operative Abu Zubaydah, and Abdul Rahim al-Na****ri, who is accused of
being the mastermind
behind the bombing of the USS Cole in 2000. All three are currently back
in the public eye,
following an admission by CIA director Michael Hayden that they were
waterboarded by the CIA.
The others include 9/11 associate Ramzi bin al-****bh, and others allegedly
connected with 9/11,
the 1998 African embassy bombings, the USS Cole operation, and the Bali
nightclub bombing in 2002.
Reading between the lines in search of an explanation, it’s worth focusing
on the infighting
between the various officials involved in the Commission process, which
acrimoniously spilled
over into the public arena last fall, when Col. Morris Davis, the
Commissions’ chief
prosecutor, noisily resigned, blaming political interference from his
superior officers, in a
chain that led upwards from Brig. Gen. Thomas Hartmann, the Commissions’
legal advisor, and
Susan Crawford, the Commission’s convening authority, to Defense
Department General Counsel
William J. Haynes II and Vice President Dick Cheney.
Col. Davis was upset that he was required to obey Haynes, with whom he
disagreed profoundly
over the latter’s desire to use evidence obtained through torture. The
politicization of the
process became apparent when it was revealed that the only person
convicted in a Commission to
date, the Australian David Hicks, had been offered a plea bargain – in
exchange for his silence
regarding his well-do***ented claims of torture and abuse at the hands of
the US military – by
Dick Cheney, and that Brig. Gen. Hartmann also wanted to offer a plea
bargain to Hamdan, in
spite of Davis’ own opposition.
One reason for wanting plea bargains is that, as with Hicks, they remove
the t***** problem of
how to deal with claims by detainees that they have been subjected to
torture, which, rather
inconveniently for the administration, remains illegal under domestic and
international law. If
Hamdan can also be persuaded to accept a plea bargain, the administration
can at least trumpet
another "success," and can possibly roll out a few more examples of
low-level players to make
it appear that the system is working.
Omar Khadr’s case is more complicated, but the inclusion of Mohamed Jawad
may be because the
military and the administration hope that they can actually produce a
successful prosecution
without having to resort to a plea bargain. Significantly, Jawad has never
claimed that he was
tortured by US forces. In his tribunal, he claimed that a false confession
was tortured out of
him by Afghan soldiers, but, with no evidence of mistreatment by the US
military, the
authorities may well be hoping that they can brush that inconvenient
allegation aside.
Certainly, it’s inconceivable that attempts would realistically be made to
locate the Afghan
soldiers who first seized Jawad in Afghanistan, and to bring them to
Guantánamo to give evidence.
None of this explains what will eventually happen to the "high-value"
detainees, for whom plea
bargains are out of the question, but whose conviction, in a court shorn
of all mention of
torture, is obviously desired. But it may explain why a selection of small
fish are still being
used to test the waters, while the real monsters are kept out of sight
and, it is hoped, out of
mind.
I wonder how long they can keep it up. Until the next administration takes
over? Or the one
after that? Or forever? Noticeably, Khalid Sheikh Mohammed, Abu Zubaydah
and Abdul Rahim
al-Na****ri all mentioned, in their tribunals at Guantánamo in spring 2007,
that they had been
tortured during their long years in secret CIA prisons, and I’m reminded
of comments made by
Michael Scheuer, the former director of the CIA’s bin Laden unit, who was
heavily involved in
the small number of relatively controlled "extraordinary renditions" that
took place before
9/11. Gazing in shock at the frenzied expansion of the program after 9/11,
Scheuer told Jane
Mayer, "The policymakers hadn't thought what to do with them," adding that
once a prisoner's
rights were violated there was no way of reintegrating them into the court
system. "All we've
done is create a nightmare," he added. "Are we going to hold these people
forever?"
Physically, we now know where these men are – in Camp VII, a secluded
addition to the prison
complex whose existence remained a closely guarded secret until this week
– but legally they
might as well be on the moon.
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