[Ppnews] Halting the Gitmo Trials

Political Prisoner News ppnews at freedomarchives.org
Thu Jan 22 12:47:30 EST 2009


http://www.counterpunch.org/worthington01222009.html

January 22, 2009


Why Obama Was Right


Halting the Gitmo Trials

By ANDY WORTHINGTON

Two separate universes were in evidence on 
Tuesday. In the world of Barack Obama, the sense 
of change, the optimism and the intelligence were 
palpable, as two million Americans from every 
part of the United States -- and numerous 
visitors from around the world -- flocked to 
Washington D.C. to watch his inauguration as the 
44th President of the United States.

Meanwhile, in the world of George W. Bush and 
Dick Cheney, 242 prisoners at Guantánamo Bay -- 
held, for the most part, for seven years without 
charge or trial -- spent another day in an 
isolation more profound than that endured by the 
most dangerous convicted criminals on the US mainland.

Change will come for these prisoners too, and 
hopefully very soon. In one of his first acts as 
President, Barack Obama ordered prosecutors in 
Guantánamo’s Military Commission trials (the 
much-criticized system dreamt up by 
<http://www.andyworthington.co.uk/2007/06/26/dick-cheney-more-horrors-from-the-vice-president-for-torture/>Dick 
Cheney and his close advisers in November 2001) 
to ask for a four-month stay on all proceedings, 
"in the interests of justice,” and in order to 
give “the newly inaugurated president and his 
administration time to review the military 
commission process, generally, and the cases 
currently pending before the military 
commissions.” He also circulated a draft of an 
executive order in which he promised to review 
the cases of the remaining 242 prisoners, and to 
close Guantánamo within a year.

By Wednesday afternoon, the judges in the cases 
of 
<http://www.counterpunch.org/worthington02122008.html>Khalid 
Sheikh Mohammed and four other prisoners accused 
of planning or facilitating the attacks of 
September 11, 2001, and 
<http://www.counterpunch.org/worthington11152007.html>Omar 
Khadr, a Canadian accused of killing US Sgt. 
Christopher Speer with a grenade during a 
firefight that led to his capture in Afghanistan 
when he was 15 years old, acceded to the 
President’s request, and it seems likely that other judges will follow suit.

However, what will happen over the next four 
months remains uncertain. As the President weighs 
up conflicting choices -- with some advising him 
that the federal court system is perfectly 
well-equipped to deal with the cases of genuinely 
dangerous prisoners, and others claiming that 
another brand-new trial system is needed -- those 
who advocate the latter should look closely at 
the events that took place at Guantánamo in the 
two days leading up to the inauguration.

To put it bluntly, on January 19 and 20, 
everything that is wrong with Guantánamo and the 
Bush administration’s ill-conceived, cruel and 
inept “War on Terror” was on display in two 
courtrooms at Guantánamo, where pre-trial 
hearings were taking place in the cases of Omar 
Khadr and the alleged 9/11 co-conspirators. And 
while these hearings, above all, cast a ghastly 
light on the gathering of intelligence in the 
“War on Terror,” and its ruinous effect on the 
lives of those caught up in a global web of 
rumors, lies and false confessions masquerading 
as facts, they also demonstrated the obstacles to 
justice that arise when innovators -- of whatever 
political hue -- attempt to replace an ancient 
and well-established legal system with something new.


The unforeseen empowerment of Khalid Sheikh Mohammed

If the homicidal wing of global jihad has a star, 
it is Khalid Sheikh Mohammed, the self-confessed 
mastermind of the 9/11 attacks, whose previous 
appearances at pre-trial hearings (in 
<http://www.andyworthington.co.uk/2008/06/06/in-a-legal-otherworld-911-trial-defendants-cry-torture-at-guantanamo/>June, 
<http://www.counterpunch.org/worthington09292008.html>September 
and 
<http://www.andyworthington.co.uk/2008/12/08/is-the-911-trial-confession-an-al-qaeda-propaganda-coup/>December 
last year) attracted substantial media attention. 
Commentators suggested that the timing of this 
latest hearing was designed to reflect glory on 
the Bush administration on the eve of Obama’s 
inauguration, but if this was the case then it was an unmitigated failure.

As with previous hearings, the system itself was 
plagued with problems, and Mohammed was allowed 
to dominate proceedings, whereas, if the 
<http://www.counterpunch.org/worthington07142007.html>allegations 
against him -- and his own declarations -- are 
true, he should, instead, be facing a trial in a 
federal court, where his outbursts would at least be circumscribed.

The hearing was ostensibly to discuss ongoing 
questions about the mental competency of one of 
the defendants, Ramzi bin al-Shibh, who, 
according to 
<http://www.miamiherald.com/news/world/story/861104.html>court 
records, is “on undisclosed psychotropic drugs.” 
Instead, however, it descended into a familiar 
farce. As the Arabic translators struggled to 
keep up (another recurring problem), several of 
the defendants attempted, unsuccessfully, to 
persuade the judge, Col. Stephen Henley, to move 
their lawyers, so that they were not sitting at 
the same table. Even so, Mohammed managed to 
sneak in a quick reference to torture, as he has 
done in every other hearing. ”The people who have 
tortured me received their salaries from the 
American government, and the lawyers do, too,” he said.

Later, as part of a rambling disquisition, which 
is allowed because, under the Commissions’ rules, 
he is permitted to represent himself, Mohammed 
addressed the desire for martyrdom that has also 
been prominent in previous hearings. “We don't 
care about capital punishment,” he explained. “We 
are doing jihad for the cause of God.” When 
Henley directed him to stick to the topic at 
hand, he countered with, “This is terrorism, not 
court. You don't give me the opportunity to 
talk.” For once, however, Mohammed’s antics were 
overshadowed by bin al-Shibh, who interrupted 
legal discussions to exclaim, “We did what we did 
and we are proud of this. We are proud of 9/11.”


Omar Khadr’s dubious confession

But while the 9/11 pre-trial hearing 
demonstrated, yet again, that a novel trial 
system is no match for the federal courts on the 
US mainland, which have successfully dealt with 
107 trials related to terrorism since 9/11 (as 
described in a Human Rights First report, In 
Pursuit of Justice 
(<http://www.humanrightsfirst.info/pdf/080521-USLS-pursuit-justice.pdf>PDF)), 
the other pre-trial hearing this week -- that of 
Omar Khadr -- tackled two other questions at the 
very heart of Guantánamo’s credibility: whether 
confessions made in generally abusive 
circumstances can be trusted at all, and how 
utterly groundless confessions can, in 
circumstances of hysteria and fear, come to be 
regarded as constituting robust “actionable 
intelligence,” with horrendous knock-on effects 
on those implicated in these false claims.

These issues were under examination as the result 
of a long campaign by Khadr’s defense team to 
have the right to question US personnel who had 
interrogated Khadr in Bagram and Guantánamo, in 
an attempt to show that he had only made 
apparently incriminating statements through 
coercion, or as an attempt to avoid punishment or 
gain favors from his interrogators.

The question of dubious confessions arose when a 
female agent, identified only as “Interrogator 
11,” who had interrogated Khadr at Guantánamo, 
testified that he had admitted throwing the 
grenade that killed Sgt. Speer. According to the 
agent, the incident took place after three other 
men had been killed and Khadr “cowered under a 
bush as the soldiers moved in,” as a 
<http://www.cbc.ca/world/story/2009/01/19/khadr-hearing.html?ref=rss>CBC 
News report explained. “He pulled the pin and 
just chucked it over his shoulder,” the agent 
said. “He had never thrown one before, so he just 
threw it over his shoulder, like he had seen in the movies.”

Although the interrogator claimed that Khadr was 
“very happy” to speak to her, and that, “when he 
would come to the room, he was always smiling,” 
there are three major problems with her story.

The first, as has been demonstrated in several 
hearings in the last 14 months, is that other 
reports by eyewitnesses are completely at odds 
with her account. In November 2007, for example, 
it was revealed, just 36 hours before Khadr’s 
trial was supposed to begin, that his defense 
team had just been informed of the existence of 
“potentially exculpatory evidence” from a “US 
government employee,” who was an eye-witness to 
the gunfight in Afghanistan that led to Khadr’s capture.

Further disturbing revelations followed last 
year. In March, 
<http://www.counterpunch.org/worthington03222008.html>Kuebler 
explained 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 at 
<http://www.counterpunch.org/worthington01092009.html>another 
hearing on December 12 a witness identified only 
as “Soldier No. 2” produced further evidence 
indicating that Khadr could not have thrown the 
grenade. In a motion submitted by Khadr’s 
lawyers, he stated 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.’” 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.”

The second reason for doubting the agent’s 
account, as CBC News also reported, is that she 
was “unable to explain why she destroyed her 
notes of the interrogation sessions after she had 
typed them up,” which strikes me as deeply 
suspicious, and the third, which cuts to the 
heart of the defense team’s doubts about whether 
any confession by Khadr is reliable, concerns the 
circumstances of his treatment in Guantánamo at 
the time the statement was made.

Although a date was not given for when Khadr 
supposedly made his confession, he was subjected 
to appalling mistreatment both in Bagram, where 
he was held for three months after his capture, 
and in Guantánamo, where he was subjected to an 
array of abusive techniques -- derived from 
torture techniques taught in US military schools 
to train US personnel to resist interrogation, 
and to provide false confessions -- which were 
<http://www.andyworthington.co.uk/2008/12/23/will-the-bush-administration-be-held-accountable-for-war-crimes/>heavily 
criticized by the Senate Armed Services Committee 
in a damning report last month 
(<http://levin.senate.gov/newsroom/supporting/2008/Detainees.121108.pdf>PDF) 
that blamed senior administration officials for 
instigating a pervasive culture of prisoner abuse.

In Khadr’s case, these techniques included 
prolonged isolation in a freezing cold cell, 
beatings, and being short-shackled in painful 
positions until he urinated on himself. On one 
particularly humiliating occasion, he reported 
that the guards “poured a pine-scented cleaning 
fluid over him and used him as a ‘human mop’ to clean up the mess.”

Under these circumstances, it is difficult to see 
how any confession can be trusted. As Lt. Cmdr. 
Kuebler explained on Monday, Khadr “regularly 
lied to his interrogators to avoid being abused.”


No one is safe from rendition and torture

This was disturbing enough, but testimony by 
another interrogator on Monday, FBI Special Agent 
Robert Fuller, added a chilling new dimension to 
the ways in which dubious confessions have been 
interpreted in the “War on Terror,” providing a 
rare insight into the bleak world of 
“extraordinary rendition,” 
<http://www.counterpunch.org/worthington08022008.html>secret 
prisons and 
<http://www.andyworthington.co.uk/2009/01/18/british-torture-victim-binyam-mohamed-to-be-released-from-guantanamo/>outsourced 
torture that Barack Obama must also tackle if he 
is to have any hope of 
<http://www.counterpunch.org/worthington11172008.html>fulfilling 
his ambition to restore America’s moral standing in the world.

<http://www.canada.com/topics/news/story.html?id=1197989>According 
to Fuller, who interrogated Khadr in the US 
prison at Bagram airbase for two weeks in October 
2002, when Khadr was shown a photograph of 
<http://www.maherarar.ca/>Maher Arar, a Canadian 
engineer of Syrian origin, who was seized at New 
York’s JFK airport on September 26, 2002, he 
identified him by name and said that he 
recognized him because he had seen him at an 
al-Qaeda “safe house” in Kabul, Afghanistan “on 
several occasions,” adding that he also “might 
have seen him” at an al-Qaeda training camp.

Fuller’s testimony was largely ignored outside 
Canada, but it sent shockwaves through the 
Canadian media, and for good reason. On October 
9, 2002, the day after Khadr reportedly 
identified him, Arar was subjected to 
“extraordinary rendition” by the US authorities. 
Flown to Syria, he was tortured for ten months 
before being released, and after his return to 
Canada was awarded 10.5 million Canadian dollars 
in compensation. Despite this, the US authorities 
had never explained why they had sent Arar to 
Syria, and had refused to remove his name from a terrorist no-fly list.

Now, of course, it appeared that they had sent 
Arar to Syria because of what Omar Khadr had told 
an FBI interrogator, and that they refused to 
clear his name because they still harbored 
suspicions that he was connected to terrorism, 
even though Arar had only been seized initially 
because he had been placed on a watch list by the 
over-vigilant Royal Canadian Mounted Police, who 
had alerted the US authorities, and even though 
he had insisted all along that he had never been to Afghanistan.

Those who knew about Arar’s case were, of course, 
appalled. Lorne Waldman, Arar's former lawyer, 
explained to the 
<http://www.thestar.com/SpecialSections/article/573901>Toronto 
Star that before Arar’s compensation was paid, 
Stockwell Day, the Canadian public safety 
minister, “was apparently shown the entire Arar 
file” by the US government, and “later asserted 
there was no reason in his view that Arar should 
remain on a watch list.” Waldman added that if 
Day “was told he was shown the whole file, either 
we have a major problem if he wasn't shown this, 
or he was shown it and he attached no credibility to it.”

Waldman was right, of course, but the truth only 
emerged during the cross-examination of Fuller, 
when it turned out that the FBI agent’s notes did 
not mention Khadr identifying Arar by name, and 
that they revealed that Khadr only “stated that 
he looked familiar.” Fuller added in his notes 
that “in time” Khadr “stated he felt he had seen” 
Arar in Afghanistan, but neglected to mention in 
his testimony that the period when Khadr “felt” 
he had seen Arar was in late September and early 
October 2001, when he was in Canada, under surveillance by the RCMP.

Lt. Cmdr. Kuebler described Fuller's testimony as 
a “gift” from the government, and there is, I 
think, no doubting that he was right, but what is 
particularly chilling about the testimony of both 
“Interrogator 11” and Robert Fuller is not just 
how false confessions can so easily be dressed up 
as the truth, and how a prisoner saying that 
someone in a photo “looked familiar” can lead to 
that person’s rendition to horrendous torture, 
but how both of these responses are typical of 
the supposed evidence that is used to hold 
numerous other prisoners in Guantánamo, to this 
day, and that has also, presumably, been used as 
an excuse to fly other prisoners to torture 
prisons around the world, either run by the CIA 
or in third countries prepared to act as proxy torturers.


Secret prisons and Guantánamo lies

On this latter point, we still have disturbingly 
little evidence to go on, because so few 
prisoners have emerged from the secret prisons to 
tell their tales, although the number of innocent 
men who have resurfaced, to be freed without 
charge, suggests that the process has been both 
disturbingly widespread, and as generally lacking 
in evidence as the case of Maher Arar. They 
include, to name but a few, 
<http://www.washingtonpost.com/wp-dyn/content/article/2005/12/03/AR2005120301476.html>Khalid 
El-Masri, a German who was kidnapped in Macedonia 
and rendered to torture in the CIA’s “Salt Pit” 
prison in Afghanistan because he had the same 
name as a man who allegedly provided assistance 
to the 9/11 attackers, 
<http://www.nytimes.com/2006/07/07/world/africa/07algeria.html>Laid 
Saidi, an Algerian seized in Africa, who spent 16 
months in the “Salt Pit” and the “Dark Prison,” 
another secret CIA prison in Afghanistan, and 
Marwan Jabour, a Palestinian seized in Pakistan 
in May 2004, who spent over two years in another 
secret prison in Afghanistan 
(<http://www.hrw.org/sites/default/files/reports/us0207webwcover.pdf>PDF).

As for Guantánamo, confessions that do not equate 
with other known evidence, and statements that 
other prisoners “looked familiar” -- accompanied 
by accounts of their presence in places they had 
never been -- are a cornerstone of the Bush 
administration’s approach to 
intelligence-gathering. I discovered numerous 
examples while researching my book 
<http://www.amazon.com/exec/obidos/ASIN/0745326641/counterpunchmaga>The 
Guantánamo Files, and others have been exposed by 
diligent military officials, including 
<http://www.andyworthington.co.uk/2008/12/22/an-interview-with-guantanamo-whistleblower-stephen-abraham-part-one/>Lt. 
Col. Stephen Abraham, a veteran of US 
intelligence who worked on Guantánamo’s tainted 
tribunals, and an 
<http://www.counterpunch.org/worthington07022007.html>unnamed 
Lieutenant Colonel in the US Army, who discovered 
that one particular prisoner, described by the 
CIA as a notorious liar, had made false 
allegations against 60 prisoners in total.

Another example surfaced just last week, during 
the habeas corpus review of 
<http://www.counterpunch.org/worthington01162009.html>Mohammed 
El-Gharani, a Chadian national and Saudi resident 
who was seized in a raid on a mosque in Karachi, 
Pakistan, when he was just 14 years old. Ordering 
his release “forthwith,” Judge Richard Leon 
lambasted the government for attempting to build 
a case that El-Gharani had been in Afghanistan -- 
and had been part of an al-Qaeda cell in London 
when he was 11 years old -- by relying on 
statements made by two other prisoners whose 
unreliability had been flagged by government officials.

As President Obama prepares to sign his executive 
order announcing that Guantánamo will be closed 
within a year, these are the kinds of stories we 
need to know, both to make sure that he sticks to 
his timetable, and, I believe, to ask him why, 
after seven years, he needs a whole year to dismantle a prison built on lies.

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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