[Ppnews] The Ongoing Collapse of the Gitmo Military Commissions

[Political Prisoner News]

http://www.counterpunch.org/worthington05172008.html

The Ongoing Collapse of the Gitmo Military Commissions


Betrayals, Backsliding and Boycotts

By ANDY WORTHINGTON

Anyone who has kept half an eye on the 
proceedings at the Military Commissions in 
Guantánamo -- the unique system of trials for 
“terror suspects” that was conceived in the wake 
of the 9/11 attacks by Vice President Dick Cheney 
and his close advisers -- will be aware that 
their progress has been faltering at best. After 
six and a half years, in which they have been 
ruled illegal by the Supreme Court, derailed by 
their own military judges, relentlessly savaged 
by their own military defense lawyers, and 
condemned as politically motivated by their own 
former chief prosecutor, they have only secured 
one contentious result: a plea bargain negotiated 
by the Australian David Hicks, who admitted to 
providing “material support for terrorism,” and 
dropped his well-chronicled claims of torture and 
abuse by US forces, in order to secure his return 
to Australia to serve out the remainder of a 
meager nine-month sentence last March.

In the last few weeks, however, Cheney’s dream 
has been souring at an even more alarming rate 
than usual. Following 
<http://www.counterpunch.org/worthington04212008.html>boycotts 
of pre-trial hearings in March and April by three 
prisoners -- Mohamed Jawad, Ahmed al-Darbi and 
Ibrahim al-Qosi -- the latest appearance by Salim 
Hamdan, a Yemeni who worked as a driver for Osama 
bin Laden, spread the words “boycott” and “Guantánamo” around the world.

Salim Hamdan’s boycott

Hamdan is no ordinary Guantánamo prisoner. It was 
his case, Hamdan v. Rumsfeld, that shut down the 
Military Commissions’ first incarnation in June 
2006, when the Supreme Court ruled that they were 
illegal, a decision that forced the 
administration to press new legislation -- the 
Military Commissions Act -- through a sleeping Congress later that year.

But Hamdan’s fame meant little to him on April 
29, when he too decided to boycott his trial, 
telling Navy Capt. Keith Allred, the judge in his 
last scheduled pre-trial hearing before his trial 
in June, “The law is clear. The Constitution is 
clear. International law is clear. Why don't we 
follow the law? Where is the justice?”

For his part, Capt. Allred did not give up 
without attempting to persuade Hamdan that he 
should believe in the legal process before which 
he found himself. “You should have great faith in 
the law,” he said. “You won. Your name is all 
over the law books.” This was true, but it was 
little consolation for Hamdan, who was charged 
again as soon as the Commissions were revived in 
Congress. Nor could Capt. Allred’s addendum -- 
“You even won the very first time you came before 
me” -- sway him, even though that too was true.

Last June, when Hamdan appeared before Capt. 
Allred for the first time, in the first pre-trial 
hearing for his new Military Commission, Allred 
<http://www.andyworthington.co.uk/2007/06/13/the-reviled-military-commissions-collapse-and-the-pressure-to-close-guantanamo-increases/>dismissed 
the case, pointing out that the Military 
Commissions Act, which had revived the 
Commissions, applied only to “unlawful enemy 
combatants,” whereas Hamdan, and every other 
prisoner in Guantánamo for that matter, had only 
been determined to be “enemy combatants” in the 
tribunals -- the Combatant Status Review 
Tribunals -- that had made them eligible for trial by Military Commission.

It was small wonder that Hamdan was despondent, 
however. Two months later, an appeals court 
<http://www.counterpunch.org/worthington09272007.html>reversed 
Allred’s decision, and Hamdan -- twice a victor 
-- was charged once more, and removed from a 
privileged position in Guantánamo’s Camp IV -- 
reserved for a few dozen compliant prisoners who 
live communally -- to Camp VI, where, like the 
majority of the prisoners, he has spent most of 
his time in 
<http://www.counterpunch.org/worthington07052007.html>conditions 
that amount to solitary confinement, and where, 
as his lawyers 
<http://counterpunch.org/worthington02082008.html>pointed 
out in February, his mental health has deteriorated significantly.

As he prepared to boycott proceedings, Hamdan had 
a few last questions for Capt. Allred. He asked 
the judge why the government had changed the law 
-- “Is it just for my case?” -- and responded to 
Allred’s insistence that he would do everything 
he could to give him a fair trial by asking, “By 
what law will you try me?” When Allred replied 
that he would be tried under the terms of the 
Military Commissions Act, Hamdan gave up. “But 
the government changed the law to its advantage,” 
he said. “I am not being tried by the American law.”

Col. Morris Davis condemns the Commissions (again)

Hamdan’s eloquent and restrained explanation for 
his boycott was the most poignant event in his 
hearing, but it was not the most explosive. That 
accolade was reserved for Col. Morris Davis, the 
former chief prosecutor for the Commissions, who 
<http://www.andyworthington.co.uk/2007/10/08/a-good-week-at-guantanamo-judge-reinstates-habeas-cases-and-the-military-commissions-chief-prosecutor-resigns/>resigned 
noisily last October, citing political 
interference in the process. Once the 
Commissions’ stoutest supporter -- in 2006 he 
told reporters, “Remember if you dragged Dracula 
out into the sunlight he melted? Well, that’s 
kind of the way it is trying to drag a detainee 
into the courtroom” -- Col. Davis explained his 
Damascene conversion in an op-ed for the Los Angeles Times in December.

Laying into his chain of command, Col. Davis 
<http://www.counterpunch.org/worthington02272008.html>lambasted 
his immediate boss, Brig. Gen. Thomas Hartmann, 
who had recently been appointed as the legal 
adviser to the Commissions’ “convening authority” 
Susan Crawford, for politicizing the process, 
attempting to hold higher profile trials behind 
closed doors (whereas Davis insisted that 
transparency was “critical”). He also criticized 
Crawford, a retired judge, who had served as Army 
counsel and defense department inspector under 
Dick Cheney in the first Bush administration in 
the 1980s, for overstepping her administrative 
role by “intermingling convening authority and 
prosecutor roles” and “perpetuat[ing] the 
perception of a rigged process stacked against the accused.”

Col. Davis also delivered a particularly stern 
rebuke to Crawford’s overall boss, the Department 
of Defense’s chief counsel William J. Haynes II, 
pointing out Haynes’ role in “authorizing the use 
of the aggressive interrogation techniques some 
call torture,” declaring, “I had instructed the 
prosecutors in September 2005 that we would not 
offer any evidence derived by waterboarding, one 
of the aggressive interrogation techniques the 
administration has sanctioned,” and declaring, 
unambiguously, that he resigned “a few hours 
after” being informed that he had been placed in 
a chain of command under Haynes.

On April 28, Col. Davis testified for Hamdan and 
reprised his complaints, telling Capt. Allred, as 
the Washington Post described it, that senior 
Pentagon officials, including deputy defense 
secretary Gordon England, had “made it clear to 
him that charging some of the highest-profile 
detainees before elections this year could have 
‘strategic political value.’” After pointing out 
that he had wanted to wait until both the cases 
and the entire Military Commissions system had “a 
more solid legal footing,” he reiterated his 
complaints against Haynes, telling Navy Lt. Cmdr. 
Brian Mizer, Hamdan’s military defense lawyer, 
what he had told the Nation in February: that, 
during a discussion of the Nuremberg Trials, in 
which Davis had noted that there had been some 
acquittals, which had “lent great credibility to 
the proceedings,” Haynes had told him, “We can't 
have acquittals. We've been holding these guys 
for years. How can we explain acquittals? We have to have convictions.”

Col. Davis also defended his uncompromising 
opposition to the use of evidence obtained 
through torture, once more directing particular 
criticism at Brig. Gen. Hartmann. “To allow or 
direct a prosecutor to come into the courtroom 
and offer evidence they felt was torture, it puts 
a prosecutor in an ethical bind,” he said, adding 
that, in response to his complaints, Hartmann had 
replied that “everything was fair game -- let the 
judge sort it out.” He added that Hartmann “took 
‘micromanagement’ of the prosecution effort to a 
new level and treated prosecutors with ‘cruelty 
and maltreatment,’” and explained that he “was 
trying to take over the prosecutor's role, 
compromising the independence of the Office of 
Military Commissions, which decides which cases 
to bring and what evidence to use.”

Ali Hamza al-Bahlul and Omar Khadr

A week later, on May 7, the boycott bandwagon 
rolled on when Ali Hamza al-Bahlul, another 
Yemeni, also refused to cooperate. Sitting alone 
in Camp Justice, Guantánamo’s new courtroom, 
having spurned the assistance of his 
government-appointed attorney, al-Bahlul, who is 
accused of producing videos for al-Qaeda, and who 
famously boycotted his pre-Hamdan Commission 
hearings in 2006, essentially picked up where he 
left off over two years ago, proudly proclaiming 
his association with Osama bin Laden, and telling 
his judge, Army Col. Peter Brownback, “We will 
continue our jihad and nothing’s going to stop 
us. You must not oppress the people in the land. 
Your oppression against us and your support to 
the strategic ally in the region is what made me 
leave my house and today, I’m telling you, and 
you’re a man of law, if you sentence me to life 
 
me and the others will be the reason for the 
continuation of the war against America.” He 
added that he did not intend to dispute any of 
the prosecution’s allegations. “I am responsible 
for my own actions in this world and the 
afterworld,” he said. “I don’t consider it to be a crime.”

While al-Bahlul’s words -- delivered to full 
advantage from his sudden perch in the media 
spotlight -- served only to underline, 
incongruously, the utter silence in which around 
200 other Guantánamo prisoners are held (those 
considered less dangerous, or not dangerous at 
all, whom the administration has no intention of 
ever prosecuting), his words were almost 
immediately overshadowed when, the day after, 
Col. Brownback, who was on the verge of securing 
a dubious place in the history books by ruling 
that the trial of 
<http://www.counterpunch.org/worthington11152007.html>Omar 
Khadr -- the only prisoner to date who has not 
boycotted his hearings -- would go ahead in June, threatened his own boycott.

Furious that, despite repeated requests, the 
prosecution (led by Maj. Jeffrey Groharing) had 
failed to provide Khadr’s lawyers with their 
client’s Detainee Information Management System 
records, to analyze his treatment in an attempt 
to uncover reasons why incriminating statements 
-- possibly obtained through torture -- should be 
suppressed, Col. Brownback declared, “I have been 
badgered, beaten and bruised by Maj. Groharing 
since the 7th of November to set a trial date. To 
get a trial date, I need to get discovery done.” 
He then ordered the government to provide the 
records by May 22, or, he said, he would suspend the proceedings entirely

While Khadr’s lawyer, Lt. Cmdr. William Kuebler, 
expressed skepticism about Col. Brownback’s 
exclamation, telling reporters, “What we've seen 
in this process is that military judges will give 
the defense pyrrhic victories when it doesn't 
threaten the foundations of the system,” 
Brownback’s intervention at the very least 
delayed confirmation of his own notoriety. If he 
decides, after May 22, to proceed with the trial 
of Khadr, who was just 15 years old when he was 
captured after a gun battle in Afghanistan that 
left one US soldier dead, he will be the first 
judge since the Second World War to proceed with 
a war crimes trial against a prisoner who was 
just a child when he was captured.

Judge bars Commissions’ legal adviser

The day after Col. Brownback’s shake-up of the 
prosecutors in Omar Khadr’s case, Capt. Allred, 
having mulled over Morris Davis’ complaints 
against Brig. Gen. Hartmann, surprised everyone, 
and threatened the Commissions’ teetering 
legitimacy once more, by disqualifying Hartmann 
from playing any role in Salim Hamdan’s trial. 
Clearly swayed by Davis’ testimony, Capt. Allred 
ruled on May 9 that he was “too closely allied 
with the prosecution,” as the New York Times 
described it. “National attention focused on this 
dispute has seriously called into question the 
legal adviser's ability to continue to perform 
his duties in a neutral and objective manner,” 
Allred wrote, explaining that public concern 
about the fairness of the cases was “deeply 
disturbing,” and that he did not find that 
Hartmann “retains the required independence from the prosecution.”

The Times followed up with more excerpts from 
Capt. Allred’s decision, which confirmed his 
support for Morris Davis’ views. “Telling the 
chief prosecutor (and other prosecutors),” he 
wrote, “that certain types of cases would be 
tried and that others would not be tried, because 
of political factors such as whether they would 
capture the imagination of the American people, 
be sexy, or involve blood on the hands of the 
accused, suggests that factors other than those 
pertaining to the merits of the case were at play.”

Capt. Allred also referred explicitly to Morris 
Davis’ statement that Brig. Gen. Hartmann had put 
pressure on him to use evidence obtained through 
torture. Noting, as the Times put it, that 
“prosecutors have an ethical obligation to 
present only evidence they consider reliable,” 
Capt. Allred wrote that directing the use of 
“evidence that the chief prosecutor considered 
tainted and unreliable, or perhaps obtained as a 
result of torture or coercion, was clearly an 
effort to influence the professional judgment of the chief prosecutor.”

9/11 charges confirmed, but Mohammed al-Qahtani dropped

While the administration tried to make light of 
Capt. Allred’s ruling, arguing that it applied 
only to Hamdan’s case, and that Brig. Gen. 
Hartmann’s position was secure, it was difficult 
not to whiff a stench of desperation in the 
Pentagon’s announcement, just three days later, 
that a date had been set for the first pre-trial 
hearing of another group of prisoners -- the 
alleged 9/11 conspirators, including Khalid 
Sheikh Mohammed, who confessed in his tribunal 
last year that he was “responsible for the 9/11 
operation, from A to Z” -- against whom charges 
had been 
<http://www.counterpunch.org/worthington02122008.html>announced in February.

Although it’s almost certain that this decision 
-- though perhaps rushed forward -- had already 
been making its tortuous way through the 
necessary bureaucratic processes, its propaganda 
value was immediately undermined when it became 
apparent that, of the six men initially charged, 
one -- Mohammed al-Qahtani -- was missing from the final charge sheet.

As Time explained, the charges against al-Qahtani 
were dropped by Susan Crawford “without formal 
explanation,” and Brig. Gen Hartmann’s offering 
-- that the dismissal provided evidence of the 
“strength of the system and the careful, 
deliberative and fair legal process in place at 
Guantánamo” -- was hardly sufficient to paper 
over the cracks. Although the charges were 
dismissed without prejudice, meaning that they 
could be reinstated in the future, nobody expects that this will happen.

The problem, as immediately became apparent, is 
that al-Qahtani, unlike the other five men, who 
were held for many years in secret prisons run by 
the CIA, was subjected to torture in Guantánamo, 
under a program devised specifically for him and 
approved by Donald Rumsfeld in late 2002. The 
details of his ordeal are well known, as Time 
published his leaked interrogation log in 2006, 
and even a military investigation in 2005, which 
stopped short of describing his treatment as 
torture, concluded that he had been subjected to abuse.

In the world of the Military Commissions, 
al-Qahtani’s case was damaging for two specific 
reasons: firstly, because, although the other 
five men were tortured in CIA custody -- and the 
CIA has publicly 
<http://www.counterpunch.org/worthington02072008.html>acknowledged 
that KSM was subjected to the torture technique 
known as waterboarding (a horrendous form of 
controlled drowning) -- he and the others have 
been reinterrogated by “clean teams” of FBI 
agents, who have solicited confessions without 
resorting to torture, whereas al-Qahtani, according to his lawyers, has not.

Leaving aside for a moment the implausibility of 
somehow “purifying” confessions obtained through 
torture by using “clean teams” -- and what it 
reveals, unintentionally, about the “dirty teams” 
whose activities are purportedly being airbrushed 
from history -- the second reason for dropping 
charges against al-Qahtani only reinforces the 
legal netherworld in which the Commissions 
operate. According to their rules, the records of 
al-Qahtani’s interrogations, which took place in 
Guantánamo, could be produced as evidence of 
torture, whereas those of the “high-value 
detainees,” interrogated by CIA teams in secret 
overseas prisons, can be overlooked, because, as 
Time put it, “Military courts overseeing 
Guantánamo have indicated they cannot compel 
evidence from US intelligence agencies.”

In reality, of course, it’s inconceivable that 
the trials of tortured prisoners -- even those 
who apparently masterminded the 9/11 attacks -- 
can actually proceed without torture being 
mentioned, but for now, at least, the 
administration is clinging to its “clean team” 
alibi, and hoping to minimize the fallout from Capt. Allred’s latest ruling.

As for al-Qahtani, described by his lawyer, Gita 
Gutierrez, as a “broken man, broken by torture,” 
his only way out now is for the Saudi government 
to negotiate his repatriation. Gutierrez told 
Time that she was “extremely concerned about his 
ability to survive mentally and physically for 
much longer in Guantánamo,” and stated, 
unequivocally, that the dismissal of charges 
“clearly indicates the government's awareness 
that any and all statements obtained from 
Mohammed [al-]Qahtani were extracted by torture 
or the threat of torture.” Replace his name with 
that of Khalid Sheikh Mohammed or any of the 
other four men charged -- Ramzi bin al-Shibh, 
Mustafa al-Hawsawi, Ali Abdul Aziz Ali, and Walid 
bin Attash -- and you see the problem that faces 
the administration as it prepares for the most significant trial since 9/11.

Andy Worthington is a British historian, and the 
author of 
'<http://www.amazon.com/exec/obidos/ASIN/0745326641/counterpunchmaga>The 
Guantánamo Files: The Stories of the 774 
Detainees in America's Illegal Prison' (published 
by Pluto Press). Visit his website at: 
<http://www.andyworthington.co.uk/>www.andyworthington.co.uk 
He can be reached at: 
<mailto:andy at andyworthington.co.uk>andy at andyworthington.co.uk




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