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<a href="http://www.counterpunch.org/worthington02082008.html" eudora="autourl">
http://www.counterpunch.org/worthington02082008.html<br><br>
</a></font><font face="Times New Roman, Times" size=4><b>February 8 / 10,
2008<br><br>
</font><h1><font face="Times New Roman, Times" size=5><b>Where Are the
Terrorists?<br><br>
<br>
</i></font><font face="Times New Roman, Times" size=5 color="#990000">The
Guántanamo
Trials</b></font></h1><font face="Times New Roman, Times" size=5>By ANDY
WORTHINGTON<br><br>
</font><font face="Verdana" size=6 color="#990000">A</font>
<font face="Verdana" size=2>ccording to a report by Jane Sutton of
Reuters, the US military has spent $12 million on a mobile court complex
-- including prefabricated holding cells shipped 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."<br><br>
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 reports 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."<br><br>
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 three
defendants whose cases are being heard this week and next -- two alleged
"child soldiers," and a driver for Osama bin Laden -- is
accused of direct involvement in the events of that terrible day.
<br><br>
<br>
</font><font face="Verdana" size=2 color="#990000"><b>Omar Khadr<br><br>
</b></font><font face="Verdana" size=2>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 support 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.<br><br>
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 A
critical component of the response of our nation and the world to the
tragedy of the use and abuse of child solders in war by terrorist
organizations like al-Qaeda is that post-conflict legal proceedings must
pursue the best interest of the victimized child -- with the aim of their
rehabilitation and reintegration into society, not their imprisonment or
execution." <br><br>
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.<br><br>
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 nor protected targets," she told the
hearing. "That is part of what war is about, killing
soldiers."<br><br>
The most explosive revelation in the hearing, however, which threatens to
derail the entire trial, only surfaced when the authorities mistakenly
released a classified document to reporters attending the hearing. At
Khadr's last hearing, in November, the judge, Col. Peter Brownback,
prevented the prosecution from showing a video, retrieved from the
compound, which purportedly 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. <br><br>
The evidence, we were told at the time, came from a "US government
employee," who was an eye-witness to the firefight that led to
Khadr's capture. The details were not revealed, but Carol Williams of the
<i>Los Angeles Times</i> was emboldened enough to report that the account
"contradicts the government version of events and could exonerate
Khadr of the war crimes with which he is charged."<br><br>
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. <br><br>
According to Michelle Shepherd of the <i>Toronto Star</i>, 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." <br><br>
The report 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."<br><br>
Shepherd reported that "controversy erupted" following the
accidental release of the document, and that, for an hour and a half,
there was a stand-off between the authorities, who wanted the document
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 document 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."<br><br>
"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."<br><br>
Col. Brownback has not yet delivered his verdict on this latest
revelation, but the <i>Toronto Star</i> 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 shipped back home, under a bond to keep the
peace."<br><br>
<br>
</font><font face="Verdana" size=2 color="#990000"><b>Mohammed
Jawad<br><br>
</b></font><font face="Verdana" size=2>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. <br><br>
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.<br><br>
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 previous
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.'"<br><br>
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."<br><br>
<br>
</font><font face="Verdana" size=2 color="#990000"><b>Salim
Hamdan<br><br>
</b></font><font face="Verdana" size=2>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. <br><br>
Last March, he told Marie Brenner of <i>Vanity Fair</i>, "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.<br><br>
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 <i>Miami Herald</i>,
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.<br><br>
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."<br><br>
"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."<br><br>
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?<br><br>
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
sports, but it is Hamdan's reference to Ibrahim al-Qosi that is
particularly significant.<br><br>
<br>
</font><font face="Verdana" size=2 color="#990000"><b>The real
terrorists?<br><br>
</b></font><font face="Verdana" size=2>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. <br><br>
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 membership 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. <br><br>
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-Nashiri, who is
accused of being the mastermind behind the bombing of the USS <i>Cole</i>
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-Shibh, and others
allegedly connected with 9/11, the 1998 African embassy bombings, the USS
Cole operation, and the Bali nightclub bombing in 2002.<br><br>
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. <br><br>
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-documented 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.<br><br>
One reason for wanting plea bargains is that, as with Hicks, they remove
the thorny 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.<br><br>
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.<br><br>
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. <br><br>
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-Nashiri 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?"<br><br>
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.<br><br>
<b>Andy Worthington</b>
(<a href="http://www.andyworthington.co.uk/">www.andyworthington.co.uk</a>
) is a British historian, and the author of
'<a href="http://www.amazon.com/exec/obidos/ASIN/0745326641/counterpunchmaga">
The Guantánamo Files: The Stories of the 774 Detainees in America's
Illegal Prison'</a> (to be published by Pluto Press). He can be reached
at:
<a href="mailto:andy@andyworthington.co.uk">andy@andyworthington.co.uk</a>
<br><br>
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