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 Americas 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 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."
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. "
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 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 Ladens 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.
Khadrs 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 Khadrs lawyers made during Mondays hearing,
and in this along with repeated calls for the Canadian government to act on
Khadrs 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, Khadrs 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 document to reporters attending the hearing. At Khadrs last
hearing, in November, Judge 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.
The evidence, we were told at the time, came from a "US government employee,"
who was an eyewitness to the firefight that led to Khadrs capture. The details
were not revealed, but Carol Williams of the Los Angeles Times 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."
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 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."
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. "
"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 shipped back home, under a bond to keep the peace."
Mohammed Jawad
If the thin case against Omar Khadr has only grown thinner after Mondays
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 Ladens 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-Qaedas plans. Lt. Cmdr. Charles Swift, Hamdans 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 Courts
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 Swifts argument,
it is, I think, perfectly valid to regard the focus on Hamdan in the
Commissions as equivalent to hauling up Hitlers driver alongside Hermann
Goering and Rudolf Hess at the Nuremberg Trials.
While Hamdans 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 Swifts
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. Karams 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 Hamdans 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 Ladens drivers
should make this oversight abundantly clear: where, in this whole surreal
farce, are the real terrorists?
In a submission arguing that Hamdans detention in Camp VI the most recent
camp for Guantánamos 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
Guantánamos cell blocks, where the relatively small number of detainees share
communal dorms, and are allowed to take part in sports, but it is Hamdans
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-Qaedas 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 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.
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 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-Shibh, 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, its 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 Commissions 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 latters 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.
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.
Omar Khadrs 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, its 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-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 Im reminded of comments made by Michael Scheuer,
the former director of the CIAs 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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