Almost humor

Number of juveniles held at Guantanamo almost twice official Pentagon figure

Andy Worthington
Published: Friday November 21, 2008

Canadian national Omar Khadr is still being held at Guantanamo Bay. Accused of murder, Khadr was captured in Afghanistan in 2002 when he was 15.

On Sunday, the Pentagon admitted that 12 juveniles -- those under the age of 18 at the time their alleged crimes took place -- have been held at Guantanamo Bay (as opposed to the figure of eight that was submitted to the UN in May). But a RAW STORY count, drawn from the Pentagon's own records, reveals that the total number of juveniles held at Guantanamo is at least 22 -- nearly double the official Pentagon figure.

In a submission to the 48th Session of the UN Committee on the Rights of the Child (PDF), the Pentagon claimed that it had only held eight juveniles during the life of the Guantanamo Bay prison. It acknowledged that three Afghans under the age of 16 were released in January 2004 (as reported in the New York Times), stated that another three juveniles were repatriated between 2004 and 2006 and claimed that it was only holding two prisoners who were juveniles at the time of their capture: the Canadian Omar Khadr and the Afghan Mohamed Jawad, who are both facing a trial by Military Commission. The much-criticized Commission was created by the Defense Department as part of "terror trials" conceived in the wake of the 9/11 attacks.

Last week, the Center for the Study of Human Rights in the Americas, based at the University of California, issued a report pointing out that, contrary to the Pentagon's assertions, at least 12 prisoners were juveniles at the time of their capture. The report correctly stated that, in addition to Omar Khadr and Mohamed Jawad, Mohamed El-Gharani, a Saudi resident born to parents from Chad, was still imprisoned. Just 14 years old when he was seized in October 2001, El-Gharani had traveled to Pakistan to study information technology, but had been rounded up in a random raid on a mosque, tortured in Pakistani custody and then held in U.S. detention, first in Afghanistan, and then in Guantanamo.

The report also asserted that the Pentagon had forgotten to include Yasser Talal al-Zahrani. Al-Zahrani, a Saudi national, was 17 when he was seized in Afghanistan, andwas one of three prisoners who died in Guantanamo (apparently by committing suicide) in June 2006.

After the report was issued, the Pentagon acknowledged that it had revised its figure from eight to 12, and said it had provided a corrected submission to the United Nations. Navy Cmdr. Jeffrey Gordon claimed that the problems arose because many of the prisoners did not know their dates of birth. But as the director of the Center for the Study of Human Rights in the Americas explained the Center's report had drawn on the Pentagon's own sources, specifically the list of all the prisoners held at Guantanamo from January 11, 2002 until May 15, 2006, which included their names, nationalities, and dates of birth.

Close scrutiny of this list reveals that the Pentagon will need to revise its figures once more, as, by its own account, a total of 22 prisoners were juveniles at the time of capture. Moreover, contrary to the Pentagon's account, five of these prisoners are still being held.

This imprecision seems to reflect the Pentagon's lack of concern for whether prisoners were juvenile at the time of capture. Under the terms of Optional Protocol to the UN Convention on the Rights of the Child (on the involvement of children in armed conflict), the U.S. administration is required to promote "the physical and psychosocial rehabilitation and social reintegration of children who are victims of armed conflict," but in May 2003, when the story first broke that juvenile prisoners were being held at Guantanamo, defense secretary Donald Rumsfeld told a press conference, "This constant refrain of 'the juveniles,' as though there's a hundred children in there -- these are not children."

Although the three juveniles released in January 2004 were held separately from the adult population and given some educational and recreational opportunities, there is no evidence that the rest of the juveniles held at Guantanamo received any preferential treatment whatsoever. In many cases, they were subjected to the kind of chronic abuse that has earned Guantanamo (and the U.S. prisons in Afghanistan) a reputation as facilities where the use of torture was routine.

The following is a list of the 22 juveniles held at Guantanamo:

Including Omar Khadr, Mohamed Jawad and Mohammed El-Gharani, five prisoners who were juveniles at the time of capture are still being held at Guantanamo. The two not previously mentioned are:

* Faris Muslim al-Ansari, a Yemeni, was 17 when he was seized crossing the Pakistani border. In Guantanamo, he explained (PDF, pp. 128-33) that his family had left Yemen when he was a child, and had moved to Afghanistan, where his father had fought the Russians. Denying an allegation that he was a Taliban fighter, he said, "I have never done anything military-related at all, and I don't know anything about military fighting," and added that he fled Jalalabad, where he was living with his parents, because "The Americans would target any Arabs, not just al-Qaeda or the Taliban, and the Northern Alliance would kill any Arab they saw."

* Hassan bin Attash, a Saudi of Yemeni descent, is the brother of a "high-value detainee" charged in connection with the 9/11 attacks, and was 16 or 17 when he was seized in Pakistan and transferred to the "Dark Prison," a CIA prison near Kabul, which resembled a medieval dungeon, but with the addition of painfully loud music which was blasted into the cells 24 hours a day. He was then rendered to Jordan, where proxy torturers "worked on" him for 16 months. In Guantanamo, he told his lawyer that he was hung upside down, beaten and threatened with electric shocks, and added that afterwards he told his interrogators "whatever they wanted to hear." In January 2004, he was rendered back to Afghanistan, and arrived in Guantanamo in September 2004.

In addition to the three juveniles released in January 2004 (Asadullah, Naqibullah and Mohammed Ismail), the following thirteen prisoners who were juveniles at the time of capture have also been released:

* Abdul Qudus, an Afghan, was 14 when he was sold to US forces by opportunistic Afghan soldiers. In Guantanamo, he explained (PDF, pp. 22-7) that he and Mohammed Ismail (one of the three juveniles released in January 2004) had been looking for work, and had ended up spending the night at an Afghan militia post. The following morning, the soldiers wanted to give them weapons and make them fight, and when they refused they were put in a car, delivered to the Americans, and accused of being with the Taliban. He was released in 2005 or 2006.

* Shams Ullah, an Afghan, was 15 or 16 he was seized by U.S. forces. In Guantanamo, it was alleged (PDF, pp. 71-4) that he had fired at U.S. and Afghan forces who had stopped him during a patrol. Shams had vague recollections of the events, but his uncle, Bostan Karim, who was seized separately, and is still held in Guantanamo, noted (PDF, pp. 138-50) that he had "a mental problem," and explained, "When the Americans came to our house there was a Kalashnikov in our house and he knew that the Americans would take this gun. So, he took the gun and went to the mosque. The Americans asked him to stop and he didn't stop, so they shot him and he became lame." He was released in 2005 or 2006.

* Qari Esmhatulla, an Afghan, was 16 or 17 when Afghan soldiers stopped him as he walked home from visiting a shrine. In Guantanamo, he said (PDF, pp. 1-7) that he "admitted the things that were not true only to make them stop beating me," and added, "I heard my captors talk about receiving a bounty from American forces for people they captured. They placed a grenade near me so they could have an explanation for arresting me." He was released in October 2006.

* Peta Mohammed, an Afghan, was 17 when he was seized with two of the juvenile prisoners released in January 2004, after a raid by U.S. Special Forces on the compound of a warlord named Samoud. All were treated brutally in a U.S. base in Gardez and at Bagram, where, according to another released prisoner, Habib Rahman (PDF, pp. 84-9), they were abused until they admitted attacking U.S. forces. Mohammed was released in 2005 or 2006.

* Yousef and Abdulsalam al-Shehri, two Saudi cousins, were both 16 when they were seized in Afghanistan. Yousef was transported to a prison in Sheberghan run by Afghan warlord General Dostum, where he spent six weeks in horribly overcrowded conditions, surrounded by the dead and dying, before being transferred to U.S. custody. Abdulsalam was sent to Qala-i-Janghi, a fort run by Dostum, where several hundred prisoners were killed in bombing raids and by artillery fire after a number of them staged an uprising. The others, who hid in the basement, survived death by bombs and flooding. When asked at Guantanamo (PDF, pp. 158-66) if he took part in the uprising, Abdulsalam said, "How am I going to fight? With my fingers? I didn't have a weapon." He was released in June 2006 and Yousef was released in November 2007.

* Abdulrazzaq al-Sharekh, a Saudi, was 17 when he was seized after crossing the Pakistani border from Afghanistan. He had apparently been recruited to help the Taliban fight the Northern Alliance (PDF, pp. 35-42), and was released in September 2007.

* Rasul Kudayev, a former wrestling champion from the Russian territory of Kabardino-Balkaria, north of Georgia, was 17, according to the Pentagon, when he was seized in Afghanistan and imprisoned in Qala-i-Janghi. He was released in March 2004, but was arrested in October 2005, after 300 gunmen attacked government buildings in his hometown, and tortured horribly in police custody, despite protesting his innocence.

* Haji Mohammed Ayub, a Uighur (a Muslim from China's Xinjiang province), had fled to Afghanistan to escape Chinese persecution, and was 17 when the settlement he shared with other Uighurs was bombed by U.S. forces (PDF, pp. 49-55). Seized by Pakistani villagers and sold to U.S. forces, he and four other Uighurs were released in May 2006 and sent to Albania, the only country prepared to accept them, where they have no work opportunities, and no prospect of ever being reunited with their families.

* Two Pakistanis, Mohammed Omar and Saji Ur Rahman, were, respectively, 17 and 15 years old when they were seized in Afghanistan and imprisoned in local jails for three months before being handed over (or sold) to U.S. forces. This year, they spoke to Tom Lasseter of McClatchy Newspapers (interviews here and here) as part of a survey of released prisoners, and it appeared that they had been recruited to fight, like thousands of other young Pakistanis, by militants connected to his madrassa (religious school). They were released in 2004.

In addition, two other Pakistani juveniles -- Khalil Rahman Hafez and Sultan Ahmad (both 17 at the time of capture) -- were released without their stories being told, and the 22nd juvenile prisoner was Yasser Talal al-Zahrani.

It remains plausible that the dates of birth of several other prisoners were recorded incorrectly by the Pentagon, and it should also be noted that Sami al-Haj, the al-Jazeera journalist released in May, told his lawyers at the legal action charity Reprieve that he believed that at least two dozen other prisoners were juveniles when they were seized.

Hundreds of juvenile prisoners are still being held in Afghanistan and Iraq. In its submission to the UN in May, the Pentagon claimed that it had held "approximately 90" in Afghanistan since 2002, and was currently holding "approximately ten," and had held "approximately 2,400" in Iraq since 2003, and was currently holding "approximately 500." If Guantanamo is anything to go by, these figures may not be reliable at all.

Andy Worthington is the author of The Guantanamo Files: The Stories of the 774 Detainees in America's Illegal Prison (published by Pluto Press).

Guantánamo Bay was bad enough — Bagram is worse

Friday, November 14th, 2008

By Daphne Eviatar | Eric Lewis didn’t know much about Ruzatullah’s case when he decided to take it on two years ago. All he knew was that in October 2004, Ruzatullah, an Afghan man in his thirties, was spending a quiet evening at home with his family in Jalalabad, Afghanistan, when U.S. troops forced their way in and searched the place. The soldiers found no guns or other weapons, but they seized Ruzatullah and his brother Inavatullah (many Afghans have only one name) and took them to the U.S. military base at Bagram. Inavatullah was released 15 days later; Ruzatullah remained at the de facto detention center. When Lewis took the case in 2006, Ruzatullah was still in U.S. custody. No charges had been brought against him. His friends and family insisted that he had no connection to terrorists, criminals, or any armed forces.

A commercial litigator at Baach Robinson and Lewis — a boutique law firm in Washington, D.C. — Lewis ordinarily represents foreign banks, insurance companies, and governments in fraud and insolvency cases. He heard about the detainees at Bagram from Tina Monshipour Foster, a former attorney at the Center for Constitutional Rights (CCR), where Lewis had been a board member. Foster’s two-year-old nonprofit, the International Justice Network (IJN), provides legal assistance to victims of human rights abuses, as well as linking advocates around the world. The problems she described to Lewis — hundreds of detainees held incommunicado and without charges at Bagram for years, unable to contact family or friends or even to see the evidence against them — drew him in.

“I remember studying Korematsu in law school and thinking, of course, that it could never happen again,” Lewis says, referring to the landmark case of Korematsu v. United States, in which the U.S. Supreme Court upheld the president’s right to force Japanese Americans into U.S. internment camps during World War II. “It became clear that [indefinite detention of foreigners by the U.S. government] was the legal issue of our time.”

On its face, the legal status of the detainees at Bagram, a U.S.-controlled air base leased from the government of Afghanistan, appears to be much like that of the prisoners at Guantánamo Bay, a U.S. military station leased from Cuba. One would expect the Bagram detainees to benefit from the legal arguments raised on behalf of the Guantánamo inmates, whose due process rights the Supreme Court has repeatedly affirmed, most recently in Boumediene v. Bush. But so far, Bagram detainees have not benefited from the precedents that now apply unequivocally to prisoners at Guantánamo Bay. Moreover, the Bagram detainees have failed to garner the same level of public attention and outrage — or the stampede of offers for pro bono representation from major commercial law firms [see related article, "Why Firms Say No"]. Foster says she’s asked several law firms for help, but so far none of them besides Baach Robinson have been willing to take on Bagram cases.

More than 600 prisoners remain at Bagram without being charged; some have been in legal limbo for more than five years. Because the United States calls Afghanistan a battleground in the war on terror, it contends that prisoners held there have no right to challenge their detention. Whether for political or strategic reasons, or merely because of Guantánamo Bay burnout, no more than a handful of detainees held by the U.S. government at Bagram have any legal representation. Yet their plight reflects a problem that extends far beyond the U.S. air base, and has implications for the United States and the prisoners it holds all over the world.

Of course, Guantánamo detainees weren’t so popular initially, either. Neal Katyal is a professor at Georgetown University Law Center who represents Salim Hamdan, the personal driver of Osama Bin Laden who was recently convicted of aiding terrorism. Katyal recalls that when he first sought help on the Hamdan case, only one law firm, Perkins Coie, was willing to take it on, out of about 15 that he approached. “When I filed the case back in 2004, a lot of people were saying we’re fighting for the wrong side,” Katyal says [see "Courting Failure"]. That all changed after the Supreme Court decided Rasul v. Bush in June 2004, holding that the federal courts have jurisdiction to review detentions of foreign nationals captured abroad and imprisoned at Guantánamo.

But the success of dozens of prominent American lawyers in representing Guantánamo detainees has had an unintended consequence: The U.S. military has stopped sending captured suspects to Guantánamo, whose total prisoner population has dropped to roughly 275. As of April, reports Human Rights First, only about 30 Afghans remain at the installation, compared with some 200 in 2002. Instead, thousands of individuals who are suspected of participating in, assisting, or having knowledge of terrorism are now being held elsewhere — an estimated 14,000 in Afghanistan and 25,000 in Iraq. Although some will eventually be transferred to Afghan or Iraqi custody, all are initially detained pursuant to President George Bush’s November 2001 executive order authorizing indefinite detention of anyone who the president has “reason to believe” is or was a member of Al Qaeda or has engaged in or assisted terrorism against the United States.

The difficulty of challenging detentions authorized by the president may be part of what’s kept many large firms from taking on Bagram cases. But as insurgents have increased their attacks on U.S. and NATO forces in Afghanistan in recent months, the idea of representing prisoners suspected of aiding terrorism there may also seem imprudent as a political matter. Some lawyers at large law firms deny being deterred by such considerations, but the IJN’s Foster disagrees. “They are afraid,” says Foster, who left Clifford Chance for CCR in 2004 to help organize pro bono representation for Guantánamo detainees. “There hasn’t been the public campaign for Bagram yet that we did for Guantánamo.”

Political considerations haven’t deterred Baach Robinson, however. “One advantage of being in a small law firm is you can ignore that pressure to a greater degree,” says Lewis, who’s working on the case with partner Katherine Toomey. “Most of our clients are abroad. Frankly, commercial clients abroad are proud to see their lawyers are part of this. I think there’s almost universal revulsion from every part of the political spectrum outside of the United States about the way the United States has been conducting its business abroad.”

The logistics of representing inmates at Bagram adds another substantial hurdle for U.S. lawyers. If representing detainees at Guantánamo seemed a Kafkaesque exercise for the many big-firm lawyers who made the tortuous trek through military obstacles, checkpoints, and security clearances to defend their clients there [See "Justice at Bay," May 2005], it’s a cakewalk compared with representing a client at Bagram.

Not only is Afghanistan about 6,000 miles farther away and much more dangerous than Cuba, but the U.S. Department of Defense does not allow detainees at Bagram to meet with lawyers or human rights organizations. No one has access to the prison other than U.S. government officials and the International Committee of the Red Cross, which does not issue public reports. “For reasons of operational security and military necessity, the number of visitors who can visit detention facilities in a country where U.S. forces are actively engaged in hostilities is necessarily limited,” Lt. Col. Mark Wright, spokesman for the Defense Department, wrote in an e-mail response to questions.

The U.S. government says that Bagram prisoners have no right to see the charges or evidence against them, or to know why they’re considered a terrorist threat. “Detention of enemy combatants during wartime is not criminal punishment and therefore does not require that individuals be charged or tried in a court of law,” Wright said in an e-mail.

According to the few lawyers representing prisoners there at the request of relatives, many Bagram detainees were turned over to U.S. authorities by former enemies or neighbors who wanted to settle an old score or collect a bounty from the U.S. — a contention supported by human rights organizations such as Amnesty International; news reports from the Associated Press, The McClatchy Company newspapers, and Time magazine; and even former Pakistani president Pervez Musharraf’s recent memoir, In the Line of Fire. Yet those imprisoned have no way to prove-or even to claim-their innocence.

Conditions at the detention center are atrocious, according to lawyers, news reports, and organizations such as Human Rights Watch and the London-based group Reprieve. Ruzatullah’s habeas petition alleged that Bagram detainees are crowded together in wire-mesh cages without toilets or running water and “are regularly tortured and abused, including being starved, severely beaten, forced into painful, contorted body positions, ‘waterboarded,’ exposed to extremely cold temperatures, and sexually humiliated.” In December 2002, the Pentagon has acknowledged, U.S. soldiers beat two Bagram detainees to death. Although officers allegedly involved in the deaths were prosecuted — five were convicted, but none received a sentence of more than three months in prison — the Pentagon vehemently denies accusations of systemic torture or abuse at Bagram. “The conditions at the BTIF [Bagram Theater Internment Facility] meet international standards for care and custody of detained persons,” Wright told The American Lawyer by e-mail. “The United States strictly prohibits the abuse of detainees in its custody.” He acknowledged that there are now about 600 detainees at Bagram, although the facility wasn’t built to hold nearly that many.

Detainees at Guantánamo have at least some means of challenging their status as enemy combatants through a Combatant Status Review Tribunal, or CSRT. At Bagram, the process is even more circumscribed. A panel of five U.S. military officers, called an Enemy Combatant Review Board (ECRB), is supposed to review the detainees’ status, usually within 75 days of their capture and every six months thereafter. But sometimes just the commanding officer, instead of a review board, decides the case, as Col. Rose Miller, commander of detention operations at Bagram, confirmed in an affidavit submitted in the Ruzatullah case. According to Miller, the designation is based on “all reasonably available and relevant information available on the date of the review.” Lewis and Foster say that almost all the evidence used against detainees comes from military personnel involved in their capture and interrogation. The detainees themselves typically have no opportunity to speak at, or even attend, the hearing or subsequent reviews.

“It makes the CSRTs look like the latest thing from the world court of transgalactic justice,” Baach Robinson’s Lewis says. The disparate treatment of detainees at Bagram is justified, the government argues, because Bagram is different. At Guantánamo, a military base leased from Cuba for more than a century, the United States retains “complete jurisdiction and control,” the U.S. Department of Justice asserted in its motion to dismiss the Ruzatullah case. Yet the “United States’s use of the Bagram Airfield is ‘a wartime necessity’ subject to a rather typical lease with the host nation,” the Justice Department wrote. Therefore, “the petitioners have no statutory habeas rights in the United States.”

Ruzatullah’s lawyers vigorously disagree. “They have a U.S. lease at Bagram that’s similar to Guantánamo,” Lewis says. “It should be treated the same.” Regardless of the particular details of different military leases,Lewis and his colleagues are also trying to establish a broader principle that could apply to the thousands of other prisoners held elsewhere in the world by the United States. As they put it in their brief to the court opposing dismissal of Ruzatullah’s habeas case: “Freedom from arbitrary executive detention dates to the Magna Carta, is not limited territorially, and is one of the most fundamental tenets of the rule of law.” They also object that enemy combatant determinations don’t meet the demands of the Military Commissions Act (MCA); that such indefinite incarceration violates the Geneva Conventions and U.S. law; and that the MCA is unconstitutional because it does not provide an adequate alternative remedy to habeas corpus.

These may not be easy arguments to win. Traditionally, the government has been allowed to detain prisoners during a war indefinitely. Yet the “war on terror,” which does not conform to any definition of “war” under international law, presents a unique challenge to this principle, Lewis says. “What happens when you have a war that is unlimited in time and space?” he asks. “When the battlefield is everywhere and it will never end? It’s not a war against a nation-state, it’s a war against a concept. The law of war was developed when conflicts were defined in time and space. In the absence of that, you’re talking about detention for a lifetime.”

The case that Bagram detainees should have habeas corpus rights might be easier to make on behalf of non-Afghan prisoners who were captured outside of Afghanistan and then sent to Bagram. The United States can’t counter that such detainees are merely being held on the battlefield for the duration of hostilities.

Take the case of Fadi Al Maqaleh, whom Tina Foster represents in a habeas petition in federal court in Washington, D.C. Foster met Al Maqaleh’s father in Yemen in 2006. He knew only that his 25-year-old son had disappeared from his home in Sana’a, Yemen, until the International Committee of the Red Cross delivered a letter from Al Maqaleh in 2003. The letter informed Al Maqaleh’s father that his son was in U.S. custody. Any details that might have explained how Al Maqaleh ended up at Bagram were redacted. Al Maqaleh’s father insists that his son has never been an enemy or combatant of any kind against the United States. Yet neither he nor his son’s lawyer is allowed to visit his son, and no one outside the U.S. government is allowed to see the evidence against Al Maqaleh. The Justice Department has moved to dismiss the habeas case Foster filed on his behalf on the same grounds that it cited in seeking to dismiss the Ruzatullah case: The federal courts, the department maintains, have no jurisdiction to rule on habeas petitions of aliens captured abroad and detained outside the U.S.

The presence of non-Afghan detainees such as Al Maqaleh at Bagram, Foster insists, makes it clear that the government is not merely using the prison as a battlefield detention center for local suspects. “Bagram is functioning exactly the same way as Gitmo is functioning,” she says. “They’re using it as a prison because it is close to a zone of active combat. That makes it look more like a normal battlefield detention situation. But that is really camouflage for a law-free zone that the U.S. can use as cover to bring people from anywhere in the world.”

On June 19, 2007, eight months after Lewis and his colleagues filed a habeas petition in the D.C. federal court on his behalf, Ruzatullah, without ever having been charged with a crime, was transferred from Bagram to a special national security wing within an old Afghan prison called Policharky. A portion of the prison known as the Afghan National Detention Facility, also designated Block D, is being used to detain suspected terrorists previously held at Bagram or Guantánamo Bay, according to the Defense Department. More than 400 such prisoners have been transferred there.

Lawyers representing Afghan prisoners, such as Lewis and Foster (legal clinics at Stanford and Yale law schools are also helping Foster’s organization on several more habeas cases) believe the military is transferring some prisoners to Policharky in order to escape American judicial scrutiny. Indeed, in July the Justice Department filed a motion to dismiss Ruzatullah’s habeas petition as moot. The U.S. government said he was now in Afghan custody and no longer under U.S. control.

His lawyers disputed that, arguing that Block D, opened in April 2007, is in fact controlled by the U.S. military. A U.S. Department of State official responsible for U.S.-run programs to improve the Afghan justice system confirmed that while his team advises Afghan officials on their prison and criminal justice systems, Block D is “strictly within the province of the Department of Defense.” Other lawyers who represent detainees at Policharky — some transferred there from Guantánamo — say their clients describe a U.S.-controlled prison. “My client said to me, ‘The guards who bring us our food are in U.S. uniforms, the guards who take us to recreation time are in U.S. uniforms,’” says Kent Spriggs, a Tallahassee-based lawyer who recently gave up his employment litigation practice to focus on representing Guantánamo detainees, some of whom are now imprisoned at Policharky.

One advantage of Policharky, however, is that prisoners there have been allowed to meet with relatives and lawyers. In January, Foster met with Ruzatullah for the first time. Under the watchful eye of prison guards, she was able to communicate with her client, a lanky man with bright green eyes and a soft-spoken demeanor, through a tiny hole in a Plexiglas partition.

Ruzatullah told Foster that about a month earlier, he had received a trial of sorts in the prison. Although no witnesses and minimal evidence were presented, Afghan judges presided over the proceeding, and Ruzatullah himself was able to attend. Representing Ruzatullah was Shabeer, an Afghan lawyer from The International Legal Foundation (ILF), a nonprofit organization based in New York. However, neither Ruzatullah nor his attorney had more than a few days’ notice of the proceeding, according to Foster and Shabeer. (Because Shabeer does not speak English, his notes about the case were translated and provided to The American Lawyer by ILF director Natalie Rea.)

A panel of Afghan judges read a statement charging that Ruzatullah had aided terrorists. The only “evidence” presented, according to Shabeer’s notes, was that his captors had found names of “government enemies” in Ruzatullah’s diary; his mobile phone number was in the possession of other suspects who had been killed by coalition and Afghan forces; Ruzatullah had graduated from a university that many antigovernment suspects have attended; and he had been living in a refugee camp believed to serve as a base for government enemies. The judges, who acted also as prosecutors, did not present any witnesses or sworn statements to support the charges, according to Foster and Shabeer. During the proceeding, Shabeer objected that there was no evidence to support the claims; the names in the diary had not been written by Ruzatullah; and many who had attended the same university or lived in the refugee camp were neither terrorists nor enemies of the Afghan or U.S. government. Ruzatullah himself also denied the charges at the trial, he told Foster during their meeting. Two days after the trial, as he told Foster, Ruzatullah was informed that he had been convicted and sentenced to three-and-a-half years in prison. Because he had already spent almost that much time in detention, however, he had only a month left in his sentence. Ruzatullah was released last spring. “They convicted him on the say-so of the U.S. government without any supporting evidence,” says Foster, who was bewildered by the news. “On the one hand, he got out of prison. But he got a criminal conviction based on nothing.” After Foster learned of Ruzatullah’s release, she and Lewis withdrew his habeas petition. (Another client of theirs, Ruhollah, named on the same habeas petition, was similarly transferred to Policharky on July 30; the Justice Department has moved to dismiss his petition.)

Ruzatullah is only one of dozens of prisoners in Block D who have undergone similar quasi-legal proceedings. Human Rights First reports that trials for prisoners at Block D began in October 2007, and by April, 65 prisoners had been convicted and 17 acquitted. No family members or members of the press have been allowed to observe the trials. Sahr MuhammedAlly of the Law & Security program of Human Rights First is one of the few Americans outside of the military who has been permitted to witness any of them. She confirms that no evidence was presented in the two proceedings she observed, but simply a statement of the charges. Based on that, “the prisoners were sentenced to eight and ten years, respectively,” she says. Although they had lawyers provided by the ILF, there was little that the attorneys could do for their clients.

“Defense counsel during hearings were asking, ‘Where is the evidence? Where are the witnesses?’” recalls MuhammedAlly. “Judges would say, ‘Why would the Americans lie? Why would the coalition forces lie?’”

The Defense Department has assisted Afghan authorities “in conducting the trials in a fair manner, and we have insisted that lawyers be provided for the accused to ensure that these proceedings are done in a manner consistent with fundamental guarantees of due process,” Defense spokesman Wright wrote in an e-mail. “The U.S. has provided information to the Afghan authorities where appropriate and necessary to provide information on the circumstances that led to detention by U.S. forces.”

As more detainees are transferred to Block D at Policharky, new prisoners continue to arrive at Bagram from around the world. Acknowledging that the current facility isn’t nearly large enough to hold the more than 600 detainees there, the Defense Department is now building a new facility on the base to house more prisoners. Whether more lawyers will be willing to represent these new prisoners, though, remains unclear.

Both Barack Obama and John McCain have said that if elected president, they will close the prison at Guantánamo Bay. If that happens, many prisoners will likely be shifted to centers where the right to challenge their detention is far less certain. For many, that will be in Afghanistan. “Afghanistan is the critical next frontier of trying to push the law to establish that there’s an irreducible minimum on actions of U.S. officials,” Lewis says. He insists: “Wherever they go, torture, indefinite detention, humiliation — these are not things U.S. officials can do.” Not even in Bagram.

Arab News Editorial: End the scandal of Guantanamo

Some things are easier said than done, among them the closure of the infamous prison at Guantanamo Bay, that has done so much to besmirch the reputation of the US around the world. There is scant doubt that President Bush was sincere in saying on several occasions over the last few years that he wanted to have done with the place. But his administration soon discovered the practical problems that closure would raise, and concluded that it could not do it. President-elect Barack Obama, however, says he will — and he must, as one of his first acts when he takes office in nine weeks’ time. Currently about 250 terrorist suspects are held at the prison. Of them about 50 have been cleared for release but would face persecution if sent home to their countries of origin, and the US has found no one else willing to take them. A similar number may be genuine terrorists. The rest probably fall into a gray area — suspects picked up on or around the battlefield, sometimes in murky circumstances, against whom the evidence is unclear. During the campaign Obama called Guantanamo a “sad chapter in American history,” noting that the military tribunals — in effect kangaroo courts — set up by the Bush administration have not worked. Indeed some military prosecutors have even resigned in protest at the system. His advisers are now working on a plan whereby the detainees would be transferred to the US. Some would be released, others given open trials in existing civilian courts, while special courts would be set up to handle the most sensitive cases. The proposal is generally supported by legal experts. But objections have been raised at both ends of the political spectrum. Many Republicans say terrorist suspects cannot be brought to the US mainland. Liberal Democrats insist that the existing legal system can do the job. Neither argument withstands scrutiny.

Confessions of a former Guantánamo prosecutor

The inside story of a military lawyer who discovered stunning injustice at the heart of the Bush administration's military commissions.

Editor's note: Since May, staff members of Human Rights Watch have been reporting on U.S. judicial proceedings at Guantánamo for Salon.

By Stacy Sullivan

Read more: George W. Bush, Terrorism, Politics, Afghanistan, Pentagon, News, Iraq, Al Qaeda, Guantánamo Bay, Guantanamo military commissions

Reuters/Brennan Linsley/Pool

An American flag waves within the razor wire-lined compound of Camp Delta prison, at the Guantanamo Bay U.S. Naval Base, Cuba, June 27, 2006.

Oct. 23, 2008 | When Army Lt. Col. Darrell Vandeveld began his work in May 2007 as a prosecutor at the Guantánamo Bay military commissions, the Iraq war veteran was one of the most enthusiastic and tenacious lawyers working on behalf of the Bush administration. He took on seven cases. In court hearings he dismissed claims of prisoner abuse as "embellishment" and "exaggeration." Once, when a detainee asked for legal representation only for the purpose of challenging the legitimacy of the military commissions, Vandeveld ridiculed the request as "idiotic."

So it came as a shock in mid-September when Vandeveld announced that he was resigning as a prosecutor because he had grave doubts about the integrity of the system he had so vigorously defended.

In the days following his resignation -- now testifying, remarkably, for the defense counsel in one of his own cases -- Vandeveld said that he went from being a "true believer" in the military commissions to feeling "truly deceived" about them. His deep ethical qualms hinged foremost on the fact that potentially critical evidence had been withheld from the defense by the government.

Vandeveld says he was pressured explicitly by superiors not to talk about his work at Guantánamo. Until now, the details of his story have largely been kept from public view. He maintains that he is not ready to speak at length about his decision to resign, but in several e-mail exchanges with me this week, as well as in a series of recent e-mail exchanges he had with others involved in the military commissions, a picture emerges of a man who struggled through an intense crisis of conscience. When he took action, he was ridiculed and bullied by his bosses for questioning the fairness of the system. The military also subjected Vandeveld to a mental-health evaluation after he decided to resign, perhaps aimed at undercutting his credibility.

Vandeveld's story reveals the painful struggle of a devoutly religious Catholic who became increasingly disturbed by a process he came to view as fundamentally unjust. Unable to confide in his family and friends because so much of the information in the cases he was working on was classified, he took the unusual step of confiding in his opposing counsel. He also consulted a priest online.

Vandeveld is at least the fourth prosecutor to resign from the highly criticized military commissions, but his account is perhaps the most stark and will surely cast a lasting pall over the process. On Tuesday, the Department of Defense announced that it was dropping charges against five detainees whose cases Vandeveld was prosecuting -- though not the controversial case that prompted his resignation.

That case, the one that ultimately provoked Vandeveld's change of heart, was supposed to be a slam dunk for the government. But as Vandeveld would come to discover, it was plagued by problems.

Mohamed Jawad, a young Afghan who allegedly fought with the Taliban, was accused of throwing a grenade into a vehicle carrying U.S. troops, gravely injuring two of them and their translator. Unlike most of the other men charged before the military commissions, who are accused of seemingly abstract crimes like "providing material support for terrorism," Jawad was charged with "attempted murder in violation of the law of war." There were witnesses to the attack and Jawad had reportedly confessed. It was the kind of coldblooded act the government hoped would capture the public's imagination.

Yet, problems arose in the case as soon as Jawad entered the Guantánamo courtroom last March. To begin with, it turned out that Jawad was only 16 or 17 at the time of his alleged offense. Under both U.S. and international law, he should never have been detained with adults, and he should have been provided educational opportunities, as well as contact with his family. He appeared emotionally distressed, holding his face in his hands and asking why he was at Guantánamo.

His defense counsel, Maj. David Frakt, told the court that Jawad was a homeless, illiterate teenager who had been drugged and forced to fight with Afghan militia, then abused by the United States and transported halfway around the world to Guantánamo where he was imprisoned for five years without charge and was now being used as a guinea pig to test a new system of military justice. He said that Jawad was deeply traumatized by the experience, to the point that he might be incapable of aiding in his defense.

In the beginning, Vandeveld was openly dismissive of the story.

"What you have heard is a series of exaggerations," Vandeveld told the court. "It's clear from what you've seen here today that he is able to assist in his defense."

But over the next six months, as more information about the case came to light, Vandeveld began to have misgivings.

Initially Vandeveld did not believe that Jawad was a juvenile at the time of his arrest. Because Jawad did not know his birth date (which is common among Afghan villagers), and had at times given different ages for himself, the United States did not record him as a juvenile. However, in the process of examining Jawad's prison records, it emerged that Jawad had undergone a bone scan at Guantánamo in 2003, estimating his age to be 18, which would have made him 17 at the time of the alleged crime.

"Jawad should have been segregated from the adult detainees, and some serious attempt made to rehabilitate him," Vandeveld said in a declaration shortly after his resignation. "I am bothered by the fact that this was not done. I am a resolute Catholic and take as an article of faith that justice is defined as reparative and restorative, and that Christ's most radical pronouncement -- command, if you will -- is to love one's enemies."

Vandeveld also had not believed that Jawad had been mistreated by his American captors. But once again, evidence obtained in the process of discovery revealed a different story. Frakt asked the government to provide a copy of prison records on detainee movements at Guantánamo. In May, Vandeveld gave Frakt a stack of them.

The records showed that in mid-2003, Jawad had been removed from a Pashto-speaking wing in the detention center and isolated, as well as deprived of comfort items such as books or mail. In September 2003, after prolonged isolation, his mental health deteriorated. Interrogators observed Jawad talking to posters on his wall. Then, on Christmas day 2003, Jawad tried to commit suicide, first by banging his head against the metal structures in his cell, then by hanging himself.

They also showed that during a 14-day period in May 2004 -- several months after the suicide attempt -- Jawad was moved from cell to cell 112 times, an average of less than every three hours. These movements, which intensified between midnight and 2 a.m., turned out to be part of a sleep deprivation program known in Gitmo parlance as the "frequent flier program." The goal of the program was to disorient detainees and make them more compliant. The records, however, give no indication that Jawad was interrogated at this time.

Initially, Vandeveld did not realize the prison records showed that Jawad had been subjected to a regime of sleep deprivation -- the records consisted of many pages of detainee movements, much of it handwritten. The sleep deprivation was pointed out to him by Frakt, who had carefully scrutinized the records. However, Vandeveld had noticed the detainee's attempt at "self harm." Shortly thereafter, he told Frakt that he wanted to broker a plea agreement that would have given Jawad a minimal sentence and some rehabilitation before sending him home to Afghanistan.

In an e-mail exchange with Frakt on May 22, Vandeveld wrote: "If I ever thought this job required me to do anything I considered unethical, I'd be out the door."

"I appreciate that and I believe you," Frakt replied. "You may have to take back your comments about Jawad's complaints being embellished and exaggerated. It looks like he was telling the truth. Did you notice that he tried to commit suicide in 2003?"

"I did notice that saddening episode ... which is one of the reasons I am pushing for a plea in this case, and why I wanted to get this information in your hands asap," Vandeveld replied.

In a subsequent e-mail the same day, Vandeveld wrote, "BTW, I will correct my misstatements on the record the next time we're in session. I know I am obliged to do so."

A few days after that exchange, Frakt filed a motion with the court to dismiss the charges against Jawad based on evidence that he had been tortured.

When Vandeveld responded to Frakt's motion, he argued that although Jawad had suffered some abuse at Guantánamo -- an unusual admission by a government prosecutor -- the remedy was not to dismiss the charges, but rather to consider the abuse in mitigating the accused's punishment.

According to Vandeveld, when his superiors saw that he had conceded that Jawad had been abused, they were furious. They reprimanded him and made him withdraw the motion and resubmit it, conceding nothing regarding prisoner torture or abuse.

The new motion he submitted stated: "Jawad ... suffered no ill-effects from his alleged sleep deprivation."

As the summer wore on, Vandeveld began to have more doubts. A series of photographs emerged from the time of Jawad's arrest: They showed a naked and terrified teenager undergoing a strip search and medical examination.

Then, in late July, Vandeveld stumbled across a report that was sitting on a colleague's desk about an investigation into the death of an Afghan taxi driver named Diliwar who had been killed in U.S. custody. Investigators had come to Guantánamo to interview detainees who were held in Bagram at the time, and took a statement from Jawad.

In his statement, Jawad said that while at Bagram, he was made to wear a black bag over his head and that he was shackled and forced to stand for prolonged periods of time. If he sat down, guards would beat him, grab him by the throat and stand him up again. At one point, he said, they shackled him to the door so he was incapable of sitting down.

Vandeveld immediately informed Frakt about the report and said he was deeply disturbed by the abuse. Equally disturbing to him was that there seemed to be no system in place to provide such evidence to the defense.

"I am highly concerned, to the point that I believe I can no longer serve as a prosecutor at the Commissions, about the slipshod, uncertain 'procedure' for affording defense counsel discovery," Vandeveld wrote in a statement after his resignation. "One would have thought that after six years since the Commissions had their fitful start, that a functioning law office would have been set up and procedures and policies not only put into effect, but refined."

Vandeveld also said that he had feared retribution if he was perceived as being too cooperative with the defense. He cited another officer who was perceived to have done so and subsequently received a mediocre Officer Evaluation Report.

"I didn't express my concerns to Brig. Gen. Hartmann or Col. Morris before asking to be reassigned," Vandeveld told me by e-mail on Wednesday, "largely because I knew both are highly-indoctrinated ideologues whose likely response would have been to have my security clearance revoked as a punitive and preventative measure. (This concern is not happenstance; I could give examples were I not bound by my clearance itself.) The hostile, dismissive way I'd seen [another concerned officer treated by superiors] was enough for me to conclude my reservations would not be well-met."

Vandeveld's fears in this regard had a potentially devastating effect on the fairness of proceedings in Jawad's case: For example, Vandeveld said he did not provide the defense with information the government had about another suspect in U.S. custody who had confessed to the same crime Jawad is alleged to have committed. Nor did Vandeveld provide the defense with a report by a U.S. government intelligence analyst stating that Jawad may have been forcibly recruited into a militia group that targets young men, sexually abuses them and drugs them before forcing them to engage in violence -- a report that appears to have corroborated part of the defense counsel's case.

By August, Vandeveld was in despair. He had concluded that Jawad was in dire need of rehabilitation and he desperately wanted to broker a deal, but he could not persuade his superiors in the prosecutor's office.

Unsure of what to do, he consulted a priest online. In an Aug. 5 e-mail to the priest, which was first reported by the Los Angeles Times, Vandeveld wrote: "I am beginning to have grave misgivings about what I am doing, and what we are doing as a country. I no longer want to participate in the system, but I lack the courage to quit. I am married, with four children, and not only will they suffer, I will lose a lot of friends."

The priest, Father John Dear, known for his social activism, encouraged Vandeveld to quit. "God does not want you to participate in any injustice, and GITMO is so bad, I hope and pray you will quietly, peacefully, prayerfully, just resign, and start your life over," Dear wrote.

Vandeveld said he still didn't feel comfortable quitting. "One of the precepts of serving as a soldier is that one 'never quits,'" he told me. So he instead asked to be reassigned, to Afghanistan.

In the days after consulting with Father Dear, Vandeveld continued to try to broker a plea deal for Jawad. In an e-mail to Frakt, he complained that he had no pull in the prosecutor's office and that the chief prosecutor, Col. Lawrence Morris, seemed to have personal animus toward Frakt.

In early September, Frakt suggested in an e-mail that Vandeveld write a letter to the Convening Authority of the military commissions detailing his efforts to work out a reasonable pretrial deal for Jawad, and explaining that he was repeatedly overruled.

Vandeveld responded: "Let me think about that some more; I have to consider the impact on my family." In mid-September, he tendered his resignation.

Reprisal from the prosecutor's office was swift.

Vandeveld was directed to undergo a psychological evaluation. He was ordered to stay at home and prohibited from coming into his office pending his official release from military service.

"Those in charge of [the Office of Military Commissions] saw my actions as an abrupt volte face, an aberration borne of emotion, and were hence concerned about my mental well-being," Vandeveld told me. "As I've said before, the humiliating experience of undergoing a mental health assessment quickly showed that their concerns were unfounded."

In what may be an effort to prevent Vandeveld from testifying for the defense -- and possibly providing additional damning information about the government's conduct at Guantánamo -- the Pentagon on Tuesday announced that it was dropping charges against five of the detainees whose cases Vandeveld was working on. The prosecutor's office insisted that the announcement was unrelated to Vandeveld's allegations and that there were no plans to drop charges against Jawad.

Vandeveld is now back home, with his wife and children in Erie, Pa.

"Now that I'm home in Erie, far removed from DC not only in distance, I'm regaining my bearings and sense of self," he said by e-mail. "I've learned, to my immense surprise and gratitude, that outside the Commissions and military bubble, there are many, many fine people whose views are sincere and supportive. I've also heard from my buddies from my time in Iraq, all of them expressing fundamental support -- the connection doesn't get any deeper than that."

Jawad, meanwhile, remains at Guantánamo, going into his sixth year of confinement. The next hearing for his case is scheduled for Dec. 9.

Al-Jazeera - Bush officials 'endorsed torture'

Human rights groups say that waterboarding amounts to torture [AFP]

The Bush administration endorsed the use of waterboarding against al-Qaeda suspects in secret memos to the Central Intelligence Agency (CIA), the Washington Post has reported.

The pair of classified memos, written in 2003 and 2004, were requested by George Tenet, former CIA chief, more than a year after secret interrogations got under way, the newspaper quoted administration and intelligence officials as saying.

The Post reported on Wednesday that the CIA required cover from the White House due to concerns of a possible backlash if details on harsh interrogation methods went public.

Waterboarding, which involves tipping a suspect back and pouring water over his face to provoke the fear of drowning, has been roundly criticised by human rights groups.

Written endorsement

Although lawyers from the US justice department had permitted the agency's interrogation methods, which began in 2002, senior CIA officials wanted the Bush administration to give the programme an endorsement in writing, the Post reported.

The request by Tenet to get a written endorsement of the CIA programme reflected unease that the Bush administration might absolve itself of decisions taken about the handling of captured al Qaeda leaders, the Post said, citing anonymous former intelligence officials.

Tenet first asked the White House for written approval in June 2003 during a meeting with members of the National Security Council, the Post reported.

Soon after, Tenet received a brief memo from the Bush administration, giving explicit approval for the CIA's interrogation methods, the officials were cited as saying by the Post.

Tenet requested a second endorsement of CIA interrogation from the administration in June 2004, the newspaper reported.

The request was made after the abuse of Iraqi detainees by US soldiers at Baghdad's Abu Ghraib prison became public, it said.

Administration officials confirmed the existence of the memos, but neither they nor former intelligence officers would describe the still classified documents in detail, the newspaper reported.

No Internet access for Guantanamo Detainee Facing Death Penalty Trial

Aijaz Hussain | AP Writer

SAN JUAN – A U.S. military judge has denied a request from professed Sept. 11 mastermind Khalid Sheikh Mohammed for Internet access inside his Guantánamo cell, ruling he does not need it to prepare for his death penalty trial.

Judge Ralph Kohlmann, a Marine colonel, said Mohammed knew he would face prison restrictions when he chose to act as his own lawyer. His Oct. 6 ruling, which also applies to four co-defendants, was reviewed Sunday on a Pentagon Web site.

The five defendants held at the Guantánamo Bay Navy base face charges including conspiracy, hijacking and terrorism for the Sept. 11, 2001 attacks that killed nearly 3,000 people in New York, Washington and Pennsylvania.

The government said it was providing the men with laptop computers so they could review the evidence, but prosecutors argued at a pretrial hearing last month that giving them access to the outside world would pose a severe security risk.

The government said it was providing the men with laptop computers so they could review the evidence, but prosecutors argued at a pretrial hearing last month that giving them access to the outside world would pose a severe security risk.

The five "high-value'' inmates are held apart from the general detainee population in a hidden prison reserved for Guantánamo detainees transferred out of secret CIA custody.

Kohlmann also rejected the inmates' requests for office equipment such as printers and special provisions to speak with their family members by telephone. But he ruled the men are entitled to have additional resources installed on their laptops including a legal dictionary, the U.S. Constitution and the Geneva Conventions.

Three of the five defendants including Mohammed are representing themselves with Pentagon-appointed attorneys serving as standby counsel. |||

New Documents Reveal Unlawful Guantanamo Procedures Were Also Applied On American Soil

Wednesday, October 8th, 2008

Market Watch | According to newly released military documents, the Navy applied lawless Guantanamo protocols in detention facilities on American soil. The documents, which include regular emails between brig officers and others in the chain of command, uncover new details of the detention and interrogation of two U.S. citizens and a legal resident — Yaser Hamdi, Jose Padilla and Ali al-Marri — at naval brigs in Virginia and South Carolina.

The documents were obtained under the Freedom of Information Act by the Allard K. Lowenstein International Human Rights Clinic at Yale Law School and the American Civil Liberties Union.

“Guantanamo was designed as a law-free zone, a place where the government could do whatever it wanted without having to worry about whether it was legal,” said Jonathan Freiman, an attorney with the Lowenstein Clinic at Yale. “It didn’t take long for that sort of lawlessness to be brought home to our own country. Who knows how much further America would have gone if the Supreme Court hadn’t stepped in to stop incommunicado detentions in 2004?”

According to the documents, Navy officers doubted the wisdom of applying Guantanamo rules on American soil. In particular, officers expressed grave concern over the effects of the solitary confinement imposed upon the three men detained at the brigs, a practice that was considered to be even more extreme than the isolation imposed at Guantanamo. Navy officers also exhibited frustration with the Defense Department’s unwillingness to provide the detainees with access to legal counsel or any information about their fates.

“The application of Guantanamo protocols on U.S. soil is incredibly significant and indicates how far the administration has gone in terms of suspending the law,” said Jonathan Hafetz, a staff attorney with the ACLU National Security Project. “The Bush administration has long argued that detainees held in Guantanamo are not entitled to any constitutional protections — an argument the Supreme Court has recently rejected. But this is not even Guantanamo — we are talking about creating prisons beyond the law right here in America.”

The documents clearly show that the standard operating procedure developed for Guantanamo Bay governed every aspect of detentions at the two bases inside the United States. Though Navy personnel tried several times to improve the harsh conditions under which Hamdi, Padilla and al-Marri were detained, senior Defense Department officials repeatedly denied the requests.

Padilla and al-Marri have reported being subjected to many of the brutal interrogation techniques used at Guantanamo Bay that included sleep deprivation, painful stress positions, prolonged isolation, extreme sensory deprivation, and threats of violence and death. That regime, it now appears, was the product of an effort to extend “Guantanamo rules” to prisons inside the United States.

Although the newly released military documents include mandatory “weekly updates” on the three men for certain periods, the weekly updates pertaining to Padilla and al-Marri for most of 2002-2004 - the period during which the two were being detained incommunicado and interrogated - were not released, but were also not reported as withheld or as missing, suggesting the possibility that Guantanamo-like interrogations were taking place.

Last month, the ACLU urged the U.S. Supreme Court to review the Bush administration’s authority to indefinitely imprison al-Marri without charge or trial. The ACLU asked the Court to reverse a federal appeals court decision that gave the president sweeping power to deprive individuals in the United States, including American citizens, of their most basic constitutional rights.

The newly released documents are available online at: www.aclu.org/safefree/detention/37040res20081006.html

The Guantanamo Standard Operating Procedure is available online at: www.aclu.org/safefree/detention/37043lgl20030328.html

SOURCE American Civil Liberties Union

The Dark Heart of the Guantánamo Trials

Who's Pulling the Strings?

The Dark Heart of the Guantánamo Trials

By ANDY WORTHINGTON

On September 24, Col. Lawrence Morris, the chief prosecutor of Guantánamo’s Military Commission trial system, announced that Lt. Col. Darrel Vandeveld, the prosecutor in the case of Mohamed Jawad (an Afghan -- and a teenager at the time of his capture -- who is accused of throwing a grenade at a jeep containing two US soldiers and an Afghan translator), had asked to quit his assignment before his one-year contract expired.

Although Col. Morris attempted to explain that Lt. Col. Vandeveld was leaving “for personal reasons,” the real reasons were spelled out in a statement issued by Vandeveld (PDF), in which he expressed his frustration and disappointment that “potentially exculpatory evidence” had “not been provided” to Jawad’s defense team:

My ethical qualms about continuing to serve as a prosecutor relate primarily to the procedures for affording defense counsel discovery. I am highly concerned, to the point that I believe I can no longer serve as a prosecutor at the Commissions, about the slipshod, uncertain “procedure” for affording defense counsel discovery. One would have thought … six years since the Commissions had their fitful start, that a functioning law office would have been set up and procedures and policies not only put into effect, but refined.

Instead, what I found, and what I still find, is that discovery in even the simplest of cases is incomplete or unreliable. To take the Jawad case as only one example -- a case where no intelligence agency had any significant involvement -- I discovered just yesterday that something as basic as agents’ interrogation notes had been entered into a database, to which I do not have personal access … These and other examples too legion to list are not only appalling, they deprive the accused of basic due process and subject the well-intentioned prosecutor to claims of ethical misconduct.

Vandeveld also stated, “My view of the case has evolved over time,” and proceeded to explain how he had come to suspect that Jawad, who has always denied throwing the grenade, was duped into joining a militant group, and was drugged before the attack. Michael Berrigan, the Commissions’ deputy chief defense counsel, added that prosecutors also knew that the Afghan Interior Ministry said that two other men had confessed to the same crime, although Vandeveld did not mention this in his statement.

Vandeveld added, “Based on my view of the case, I have advocated a pre-trial agreement under which Mr. Jawad would serve some relatively brief additional period in custody while he receives rehabilitation services and skills that will allow him to reintegrate into either Afghan or Pakistani society.” This, however, was turned down by his commanding officers. He continued: “One of my motivations in seeking a reasonable resolution of the case is that, as a juvenile at the time of capture, Jawad should have been segregated from the adult detainees, and some serious attempt made to rehabilitate him. I am bothered by the fact that this was not done.”

On October 26, as Jawad’s defense lawyer, Maj. David Frakt, sought to have the case dismissed due to “gross government misconduct,” Lt. Col. Vandeveld testified for the defense by video link from Washington D.C., explaining, as the Associated Press described it, that “the embattled military tribunal system may not be capable of delivering justice for Jawad or the victims.” “They are not served by having someone who may be innocent be convicted of the crime,” Vandeveld said, reiterating that, even after six years, “it is impossible for anyone in good conscience to stand up and say he or she is provided all the discovery in a case.”

Explaining more of his reasons for quitting his job, Vandeveld told the court that he “reached a turning point” when he chanced upon “key evidence among material scattered throughout the prosecutors’ office.” In another case file, he said he “saw for the first time a statement Jawad made to a military investigator probing prisoner abuse in Afghanistan,” and described it as “an episode that helped convert him from a ‘true believer to someone who felt truly deceived.’” He added that he had “even developed sympathy” for Jawad. “My views changed,” he said. “I am a father, and it's not an exercise in self-pity to ask oneself how you would feel if your own son was treated in this fashion.”

Lt. Col. Vandeveld’s departure -- and his reasons for leaving -- are another serious blow to the credibility of the Military Commissions, which were established by Dick Cheney and his close advisers in November 2001. In June 2006, they were ruled illegal by the US Supreme Court, and although they were revived by Congress later that year in the much-criticized Military Commissions Act, they have never escaped accusations that they are a parody of justice, designed to secure convictions at all costs. Even so, Lt. Col. Vandevelt’s profound criticisms of a system that imprisons juveniles instead of rehabilitating them, and that suppresses evidence relevant to the defense, is just part of a much darker narrative that has been unfolding for the last 18 months.

The role of Brig. Gen. Hartmann

From this perspective, an even more significant event was the Pentagon’s announcement, on September 19, that Brig. Gen. Thomas Hartmann had been removed from his post as legal adviser to the Convening Authority overseeing the Commission process, which, as the Washington Post recently explained, is “a Pentagon office that is required to exercise a neutral role in the commissions, overseeing but not dictating the work of prosecutors and allocating resources to both the prosecution and defense.”

Hartmann, a reservist whose civilian job is chief counsel to the Connecticut-based Mxenergy Holdings Inc., became the legal adviser to the Convening Authority in July 2007, and was also required to “exercise a neutral role.” According to the rules set up for the Commissions, he was “supposed to provide impartial advice” to the Convening Authority (retired judge Susan Crawford), and was also supposed to “make an independent and informed appraisal of the charges and evidence,” to help Crawford “decide whether charges proposed by the prosecutors are sufficient to go to trial.”

However, complaints arose almost as soon as Hartmann was appointed. Just two months after he took the job, the Wall Street Journal revealed that Col. Morris Davis, the Commissions’ chief prosecutor, had filed a formal complaint alleging that he had “overstepped his mandate by interfering directly in cases.” In a letter, Davis suggested that both he and Hartmann should resign “for the good of the process,” adding, “If he believes in military commissions as strongly as I do, then let’s do the right thing and both of us walk away before we do more harm.”

Officials who spoke to the Journal’s Jess Bravin made it clear that Col. Davis was not alone in his complaints. A lawyer close to the process explained that, although Hartmann had complained that, after four years, the prosecution was “still unready to try cases,” and was frustrated with their “can’t do” approach, some of the prosecutors regarded him as “‘micromanaging’ cases he doesn’t fully understand.”

Brig. Gen. Hartmann escaped unscathed from Col. Davis’ accusations -- and in fact it was Davis, alone, who resigned on October 4 -- and he also escaped censure the following month, when, during a pre-trial hearing for Omar Khadr (the Canadian who was just 15 years old when he was captured in July 2002), Khadr’s defense team announced that they had just been informed of the existence of an eyewitness to the main crime for which Omar was being charged -- the death of a US soldier in a grenade attack -- whose testimony could exonerate their client. This was extraordinary enough, in and of itself, but what made the story particularly shocking was prosecutor Jeff Groharing’s admission that, as the Los Angeles Times described it, “he had been prohibited from talking about the case” by Brig. Gen. Hartmann.

Hartmann is barred from three trials

Hartmann’s luck finally ran out in May, when, after Col. Davis reprised his complaints in pre-trial hearings for Salim Hamdan (a driver for Osama bin Laden whose trial took place this summer), the judge in Hamdan’s case, Capt. Keith Allred, disqualified him from playing any role in Hamdan’s trial, ruling that he was “too closely allied with the prosecution,” and that “national attention focused on this dispute has seriously called into question the legal adviser’s ability to continue to perform his duties in a neutral and objective manner.” Allred added, “Telling the chief prosecutor (and other prosecutors) that certain types of cases would be tried and that others would not be tried, because of political factors such as whether they would capture the imagination of the American people, be sexy, or involve blood on the hands of the accused, suggests that factors other than those pertaining to the merits of the case were at play.”

In August, Hartmann was excluded from Mohamed Jawad’s trial for the same reasons. Jawad’s lawyer, Maj. David Frakt, told the judge, Col. Stephen Henley, that Hartmann “usurped the role of a prosecutor -- rather than acting dispassionately -- and pushed to get Jawad charged because the case involved battlefield bloodshed.” Frakt also pointed out that Hartmann had “failed to turn over defense documents” to Susan Crawford, even though these documents “outlined mitigating circumstances that might have altered her decision to endorse the charges.” He also secured testimony from an unlikely ally, Brig. Gen. Zanetti, the deputy commander of Guantánamo’s Joint Task Force, who declared that Hartmann’s demeanor was “abusive, bullying and unprofessional … pretty much across the board,” and described his approach to the Commissions as, “Spray and pray. Charge everybody. Let’s go. Speed, speed, speed.”

Three weeks ago, Hartman was barred for a third time, this time from any post-trial review in Omar Khadr’s case. The judge, Col. Patrick Parrish, had refused a request from Khadr’s lawyers to disqualify Hartmann from involvement in Khadr’s trial, but he barred Hartmann from reviewing it, in the case of a conviction, for the same reasons as those described above.

To add to the criticism, Lt. Col. Vandeveld also tore into Hartmann as he announced his departure from the Commissions. The Los Angeles Times spoke to a Pentagon official, who explained that “Vandeveld had defended Hartmann against the undue-influence allegations in the Jawad case in recent weeks but lost,” and Hartmann “had retaliated against him, causing the prosecutor emotional distress and prompting him to quit and go public with his concerns.”

News of Brig. Gen. Hartmann’s departure was telegraphed three weeks ago, in the wake of the Khadr ruling, when Charles “Cully” Stimson, a former deputy assistant secretary for detainee affairs, stepped forward to suggest that, under a “three strikes and you’re out” philosophy, Hartmann should resign. Stimson explained that he was particularly concerned about challenges and appeals frustrating the forthcoming trial of Khalid Sheikh Mohammed and his co-conspirators in the 9/11 attacks, which Hartmann “helped shepherd.”

Hartmann’s extraordinary promotion

Instead of losing his job, however, Brig. Gen. Hartmann was actually promoted to a new post, as Director of Operations, Planning and Development for the Commissions, responsible, as the Associated Press put it, for “such activities as the hiring of dozens of lawyers and paralegals and ensuring there are adequate resources for the massive legal undertaking.” His deputy, retired Army Col. Michael Chapman, took over as legal adviser.

In the Miami Herald, Carol Rosenberg shrewdly realized that the Pentagon had hoped to bury the news of Hartmann’s reassignment. Explaining that the announcement “ended weeks of speculation on the fate of Hartmann with little fanfare,” she noted that it was issued “on Friday afternoon, a time considered in Washington circles to be when the Defense Department disposes of uncomfortable business.” This was certainly true, but it soon became clear that what was particularly “uncomfortable” about the “business” was not Hartmann’s removal as legal adviser, but the significance of his effective promotion to a new job.

Although the Associated Press reported that the new job “takes Hartmann away from direct supervision of the prosecution,” other observers were not convinced. The Washington Post reported that Human Rights Watch had stated that “instead of trying to clean up house, the Pentagon has now moved a man accused of bullying prosecutors to bring cases to trial and dismissing concerns about evidence being tainted by torture into a position coordinating all matters relating to the commissions.”

In addition, Col. Davis compared the reassignment to that of Russia’s former Premier and his newly promoted protégé, saying, “Elevating his deputy and leaving him in the process, I'm afraid, will be like the Vladimir Putin-Dmitry Medvedev relationship where there's some real doubt over who pulls the strings.” Speaking to the AP, Davis was even blunter, comparing Hartmann to a “cancer” that had infected the entire Commission process. “The only way to ensure cancer can do no harm,” he said, “is to get it out of the body.”

Noticeably, Hartmann himself confirmed that his reassignment was anything but a punishment. “I feel like it's an elevation, a promotion, because it recognizes ... the exponential growth of the commissions,” the AP reported him as saying, and in the Washington Post he claimed that, although “the recent court rulings forced him and others at the Pentagon to think about his role,” the reason for his new assignment was that “he and his superiors thought that the ‘best way to run the system was to take this more senior leadership position.”

Hartmann continued crowing in comments to the Miami Herald. Likening his new job to that of a “chief executive officer at a 250-staff corporate headquarters,” and adding that he “had no fixed budget,” he declared that his biggest challenge was “to keep the process moving, really intensely.” He added, “Everybody needs to start seeing more trials. I want those courtrooms to be as filled up as they can possibly be -- six days a week.”

While this is nothing short of despicable, given the condemnation of Hartmann’s pro-prosecution bias by three government-appointed judges, what no one has yet done in the last two weeks is to look behind the scenes to see what Hartmann’s reassignment reveals about the whole command structure of the Military Commissions. And when this is looked at in detail, Hartmann appears, shockingly, to be little more than a puppet (albeit a willing and hard-working one), whose reassignment is a reward to prevent him from being a sacrifice, which was bestowed upon him by his masters -- in the Pentagon, and in the Office of the Vice President -- who have no interest in establishing a fair or just process at Guantánamo.

Who’s pulling the strings?

To understand this story we need to look back, beyond Hartmann’s appointment, to February 2007, when Susan Crawford was appointed as the Commissions’ Convening Authority. In a revelatory article for Harper’s Magazine this February, Scott Horton examined the source of the “cancer” referred to by Col. Davis, and traced it back to a plea bargain struck, for political reasons, in the first trial by Military Commission to go ahead: that of the Australian David Hicks, who admitted to providing material support for terrorism in March 2007, in exchange for a nine-month sentence to be served back in Australia.

What happened, it was later revealed, was that Australian Premier John Howard, who was seeking re-election, had been struggling in the polls, partly because the previously ignored plight of Hicks had become a political hot potato. Anxious to help one of his few stout allies in the “War on Terror,” Vice President Dick Cheney paid Howard a quick visit, and on returning home appointed a new Convening Authority for the Military Commissions, retired judge Susan J. Crawford, who, as Horton noted, was “a Cheney protégée,” and was, moreover, “particularly close to Cheney’s chief of staff David Addington,” the prime architect not only of the Commissions, but also of the majority of the administration’s post-9/11 flight from the Geneva Conventions and the UN Convention Against Torture.

With Crawford in place -- and assistance from William J. Haynes II, the Pentagon’s General Counsel, who was “known for his tight connections with the Vice President’s Office” -- a plea bargain was negotiated with Hicks’ lawyers, and the sidelining of Col. Davis began in earnest.

As Hicks’ trial got underway, Col. Davis “confidently delivered a searing opening promising to make Hicks out as a bloodthirsty figure who had betrayed his homeland and turned to a path of ‘Islamic’ violence,” as Scott Horton described it. He was both humiliated and dismayed when the plea bargain was revealed, as neither he, nor any of the other prosecutors, had been informed of the deal cut by Cheney, Addington, Crawford and Haynes.

This, of course, explains why, although Col. Davis maintained a dignified silence at the time, his frayed patience began to unravel in July, when Brig. Gen. Hartman assumed his new role as Susan Crawford’s legal adviser. Hartmann took charge of the prosecution office while Davis was away, recovering from surgery, and he proceeded to take advantage of Davis’ absence to shake things up as he -- and his masters -- saw fit.

The most significant date, however, is October 3, the day before Col. Davis’ resignation, as it was then, as Scott Horton described it, that Haynes “crafted and secured Deputy Secretary of Defense Gordon England’s signature on two documents,” which sealed a significant change in the command structure of the Commissions. The first established that Hartmann would report to Paul Ney, the Defense Department’s Deputy General Counsel (Legal Counsel), who in turn reported to Haynes, and the second placed Col. Davis in the chain of command under Hartmann. This second memorandum, as Horton explained, “was particularly necessary as an after-the-fact adjustment to cover Haynes’s manipulation of the Hicks case, establishing a chain-of-command justification for his intervention to direct the plea bargain resolution of the case.”

The former chief prosecutor turns

This, then, was the specific reason why, in a blistering op-ed in the Los Angeles Times two months after his resignation, Col. Davis stated, “I was the chief prosecutor for the military commissions at Guantánamo Bay, Cuba, until Oct. 4, the day I concluded that full, fair and open trials were not possible under the current system. I resigned on that day because I felt that the system had become deeply politicized and that I could no longer do my job effectively or responsibly.”

Although Col. Davis was critical of Brig. Gen. Hartmann, he explained that the particular trigger for his decision was the memo described above, informing him that he had been placed in a chain of command under Haynes. Stating that he resigned “a few hours after” being informed of this, he mentioned that “Haynes was a controversial nominee for a lifetime appointment to the US 4th Circuit Court of Appeals, but his nomination died in January 2007, in part because of his role in authorizing the use of the aggressive interrogation techniques some call torture.” He added, “I had instructed the prosecutors in September 2005 [shortly after taking the job] that we would not offer any evidence derived by waterboarding, one of the aggressive interrogation techniques the administration has sanctioned.”

Haynes, of course, was not only involved in the approval of “enhanced interrogation techniques” for use at Guantánamo; he also helped develop the concept of holding prisoners as “enemy combatants” without charge or trial, and without the protections of the Geneva Conventions, and played a part in the process that led to holding an American citizen, Jose Padilla, as an “enemy combatant” on the US mainland.

Col. Davis was also critical of the role played not only by Hartmann and Haynes, but also by Susan Crawford, and he was dismayed by what he described as Hartmann and Crawford’s desire to conduct trials “behind closed doors.” “Transparency is critical,” he wrote, adding that it was “absolutely critical to the legitimacy of the military commissions that they be conducted in an atmosphere of honesty and impartiality,” and pointing out that “even the most perfect trial in history will be viewed with scepticism if it is conducted behind closed doors.”

Davis also directed a specific attack at Susan Crawford, explaining that “the political appointee known as the ‘convening authority’ -- a title with no counterpart in civilian courts -- was not living up to that obligation.” As he described it, Crawford, unlike her predecessor Maj. Gen. John Altenburg, whose staff had “kept its distance from the prosecution to preserve its impartiality,” had overstepped her administrative role, and “had her staff assessing evidence before the filing of charges, directing the prosecution’s pre-trial preparation of cases (which began while I was on medical leave), drafting charges against those who were accused and assigning prosecutors to cases.” He continued: “Intermingling convening authority and prosecutor roles perpetuates the perception of a rigged process stacked against the accused.”

In this first, considered outburst, Col. Davis laid out, with admirable clarity, a contaminated chain of command -- indifferent to the use of torture by US forces, dedicated to using the poisoned fruit of that torture in trials at Guantánamo, and committed, essentially, to conducting “a rigged process stacked against the accused” -- that led from Hartmann to Crawford and Haynes, and from there to Dick Cheney and David Addington.

“No acquittals”

And if further proof were needed that Haynes was the link connecting the supposedly impartial Convening Authority and her legal adviser from the ferociously biased Vice President and his chief of staff, this came in February this year, when Col. Davis told Ross Tuttle of the Nation about a conversation he had with Haynes in August 2005.

“[Haynes] said these trials will be the Nuremberg of our time,” recalled Davis, referring to the Nazi tribunals in 1945, considered the model of procedural rights in the prosecution of war crimes. In response, Davis said he noted that at Nuremberg there had been some acquittals, which had lent great credibility to the proceedings.

“I said to him that if we come up short and there are some acquittals in our cases, it will at least validate the process,” Davis continued. “At which point, [Haynes's] eyes got wide and he said, ‘Wait a minute, we can't have acquittals. If we've been holding these guys for so long, how can we explain letting them get off? We can't have acquittals. We've got to have convictions.’”

Although Haynes announced his sudden retirement shortly after his conversation with Col. Davis was revealed, his place as the intermediary between the Office of Military Commissions and the Vice President’s Office has been seamlessly filled by the Pentagon’s Acting General Counsel, Daniel Dell’Orto.

A “career official at the Pentagon,” as Philippe Sands described him in Vanity Fair, Dell’Orto had accompanied Haynes and then-White House Counsel Alberto Gonzales when they presented the media with a carefully calibrated justification of the administration’s actions in the wake of the Abu Ghraib scandal in June 2004, and in July 2006, after the Supreme Court had struck down the Commissions’ first incarnation as illegal (in Hamdan v. Rumsfeld), he told the Senate Committee on the Judiciary that the Commissions were “an indispensable tool for the dispensation of justice in the chaotic and irregular circumstances of armed conflict.” Ignoring the fact that prisoners seized in wartime should be granted the protections of the Geneva Conventions, he also claimed, “It would greatly impede intelligence collection essential to the war effort to tell detainees before interrogation that they are entitled to legal counsel, that they need not answer questions, and that their answers may be used against them in a criminal trial.”

The dark heart

What I find particularly fascinating, however, is the way in which Susan Crawford has, to date, been shielded from allegations of impropriety by the activities of Brig. Gen. Hartmann. I’m grateful to Scott Horton not only for demolishing notions of Crawford’s independence by pointing out her close ties with Dick Cheney and David Addington, but also for including a specific anecdote that demonstrates the strength of her relationship with the Vice President’s chief of staff. “At an event held last year to mark Crawford’s retirement as a military appeals judge,” Horton wrote, “she went out of her way to note the presence of and thank just one person, her friend David Addington.”

In addition, one reporter, William Glaberson, raised pertinent questions about Crawford’s role after Salim Hamdan’s trial this summer. “There were unknowns,” Glaberson wrote in the New York Times. “A Pentagon official, Susan J. Crawford, has broad power over the entire tribunal process, including naming the military officers eligible to hear the case. Her title, convening authority, has no civilian equivalent. Her decisions to grant or deny financing for items like the defense’s expert witness fees or defense lawyers’ transportation were not explained during the trial. She has never granted an interview to a reporter.”

Crawford’s mentor, David Addington, never grants interviews either, but Brig. Gen. Hartmann’s cynical promotion, and Lt. Col. Vandeveld’s resignation, will hopefully bring the crucial role in the Commission process that is played by Susan Crawford, David Addington and Dick Cheney into sharper relief. This is of critical importance, as the deliberate suppression of evidence that is essential to the defense appears to be endemic.

In Mohamed Jawad’s case, this has been highlighted twice -- first in August, when Col. Henley not only excluded Hartmann from involvement in Jawad’s case, but also ordered “potentially exculpatory information” to be sent to Susan Crawford, and on Wednesday by Lt. Col. Vandeveld, who, as the Los Angeles Times reported, “said military prosecutors routinely withhold exculpatory evidence from the defense in terrorism cases.”

In August, Henley refused to order the charges against Jawad to be dropped entirely, and, instead, made a request for Crawford to review the charges, indicating that it was up to her to decide whether to “drop or reduce them,” but I believe that this analysis of the Commission’s chain of command, and the exposure of Crawford’s spectral impartiality, casts serious doubt on the trust that Henley placed in Crawford, and indicates that, seven weeks after Henley made his ruling, the Convening Authority either has not received the exculpatory information, or has chosen to ignore it.

We end, therefore, where we began, with Lt. Col. Vandeveld, and his courageous refusal to play out his role in a rigged and one-sided process that would imprison a young Afghan for life by suppressing inconvenient evidence -- such as the fact that he may not have actually been responsible for the alleged crime of which he is accused. What happens next is unknown, but it’s certain that lawyers for other prisoners facing trial by Military Commission -- Omar Khadr, for example, and British resident Binyam Mohamed, whose lawyers recently took his case to the British High Court in an attempt to secure access to exculpatory evidence -- will be doing their damnedest to ensure that they pursue those responsible for rigging the system all the way up the chain of command.

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