Halting the Gitmo Trials

Why Obama Was Right

By Andy Worthington

(January 23, London, Sri Lanka Guardian) 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 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 Khalid Sheikh Mohammed and four other prisoners accused of planning or facilitating the attacks of September 11, 2001, and 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 June, September and 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 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 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 (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 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, 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 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 heavily criticized by the Senate Armed Services Committee in a damning report last month (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,” secret prisons and outsourced torture that Barack Obama must also tackle if he is to have any hope of fulfilling his ambition to restore America’s moral standing in the world.

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 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 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, 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, 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.

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 The Guantánamo Files, and others have been exposed by diligent military officials, including Lt. Col. Stephen Abraham, a veteran of US intelligence who worked on Guantánamo’s tainted tribunals, and an 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 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 'The Guantánamo Files: The Stories of the 774 Detainees in America's Illegal Prison' (published by Pluto Press). Visit his website at: www.andyworthington.co.uk He can be reached at: andy@andyworthington.co.uk - Sri Lanka Guardian