[Ppnews] The Guántanamo Trials - Where Are the Terrorists?

[Political Prisoner News]

http://www.counterpunch.org/worthington02082008.html

February 8 / 10, 2008


Where Are the Terrorists?


The Guántanamo Trials

By ANDY WORTHINGTON

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 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.


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 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.

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."

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.

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."

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.

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 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 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.

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 
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.'"

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 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.

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 
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.

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 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. 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."

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?

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.


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-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.

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, 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.

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.

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 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.

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 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?"

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.

Andy Worthington 
(<http://www.andyworthington.co.uk/>www.andyworthington.co.uk) 
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' (to be 
published by Pluto Press). He can be reached at: 
<mailto:andy at andyworthington.co.uk>andy at andyworthington.co.uk




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