Saturday, October 4, 2008

Andy Worthington--Guantanamo Files/Stacy Sullivan of HRW ONLINE with FDL Book Salon Online Discussion

The Guantanamo Files Online Discussion: FDL Book Salon Welcomes Andy Worthington: and Stacy Sullivan of Human Rights Watch, Saturday October 4, 2008 (this version is somehwhat selectively condensed and interpreted by reading only by this blogger. See bottom of post for another version of the full transcript and Andy's very alive & interactive website as well as book information.)

INTRO by Stacy Sullivan of HRW:
Andy Worthington has written an extraordinary book, The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison, that provides the only thorough accounting of the nearly 800 men who have passed through the US detention facility at Guantanamo Bay. In it, he details who they are, how they got there, how they were treated in US custody, and most shockingly, how few of them were actually involved in any kind of terrorist activity against the United States or its allies.

By methodically analyzing 7,000 pages of transcripts of the tribunals the Pentagon held at Guantanamo to assess the detainees’ status as “enemy combatants,” as well as sifting through news reports and interviews with lawyers and released detainees, Worthington concludes that although Guantanamo is holding some terror suspects who were allegedly involved in the planning of the 9/11 and other terrorist attacks (including Khalid Sheikh Mohammed and several other so-called “high value detainees”), the overwhelming majority of the men who have passed through the prison were low level foot soldiers or humanitarian aid workers, religious teachers or economic migrants who were caught in the wrong place at the wrong time.

Worthington begins in Afghanistan, where the United States and its allies went to destroy al Qaeda’s infrastructure and rout the Taliban, but quickly found itself involved in one side of a long-standing civil war in Afghanistan. Unaware of the differences between Al Qaeda, the Taliban and the scores of other factions at the various camps in Afghanistan, he details how the United States wound up in custody of many detainees who had nothing to do with Al Qeada or terrorism against the United States, but who nonetheless, wound up at Guantanamo.

At the same time, Worthington takes us behind the scenes in Washington, where prior to US forces entering Afghanistan, the Bush administration issued a military order authorizing the President to capture anyone he regarded as a terrorist anywhere in the world, declare them an “enemy combatant” and hold them without charge or trial. He shows us how officials in the administration – namely Vice President Dick Cheney and his then legal counsel, David Addington – persuaded the president that detainees captured in the “war on terror” were not protected by the Geneva Conventions and that they could be interrogated with a variety of so-called “enhanced interrogation techniques.” He also details how Cheney’s cabal essentially defined torture out of existence, by seeking advice from the Department of Justice stating that interrogations constituted of torture only if the pain endured was “of intensity akin to that which accompanies serious physical injury, such as organ failure, impairment of bodily function, or even death.” These instructions cleared the way for the serious mistreatment and abuse that took place not only at Guantanamo, but also at US detention facilities in Afghanistan, Iraq and secret CIA sites.

There is little question that Guantanamo was a mistake. In addition to putting a black spot on the United States’ reputation as a nation that adheres to the rule of law, evidence suggests that it has served as a valuable recruiting tool for Jihadists around the world. Virtually everyone – both US presidential candidates, Defense Secretary Robert Gates, even President Bush himself – have said they would like to see Guantanamo closed and officials have been working diligently to send home detainees cleared for transfer or release.

Today, roughly 250 men remain at Guantanamo. However, closing the prison is easier said than done, and the administration continues to insist on trying terrorism suspects by widely discredited military commissions that lack fundamental due-process guarantees and are extremely inefficient. To date, nearly seven years since Guantanamo opened, only two suspects have been convicted – former kangaroo skinner David Hicks, who negotiated a plea agreement and was sentenced to nine months in his native Australia, and Salim Hamdan, Osama bin Laden’s former driver who was tried this summer and sentenced to five and one-half years with five years credit given for time served.

Before we get into a discussion of how to close down Guantanamo and look at some of the problems with the military commissions, I’d like to start from the beginning and ask Andy how Guantanamo came to be established and how it came to pass that so many seemingly innocent men ended up detained there?

From Program Manager: Andy, Welcome to the Lake, and the new readers from the U.K. Stacy, Thank you for Hosting this Book Salon today...

Andy: Thanks for the intro, Stacy. OK, so in the first place Guantanamo was chosen because it was presumed to be beyond the reach of the US courts – a place literally outside the law for an unprecedented experiment in detention. Essentially, if you’re going to seize and hold someone, there have only been two ways of doing it: it’s either wartime and they’re Prisoners of War, protected from cruel treatment – and interrogation – by the Geneva Conventions, or they’re criminal suspects, to be charged and tried in a regular court. The administration decided that the “War on Terror” prisoners were a whole new category, hence the Military Order of November 2001 authorizing the President to seize and indefinitely detain anyone he suspected as an “illegal enemy combatant” without rights, and hence the confusion we’re still living with today.

The choice of Guantanamo, however, demonstrated from the beginning, I think, how furtive the administration actually was, despite the pressure from Dick Cheney and his close advisers – in particular David Addington – to insist that the “War on Terror” entitled the President to wield unlimited and unfettered executive power. They were, essentially, hiding in Guantanamo, just as they later hid their torture prisons in other countries: Thailand, Poland etc.

In response to your second question, so many innocent men ended up in Guantanamo for three reasons: firstly, because the US authorities were offering substantial bounties for “al-Qaeda and Taliban suspects,” secondly, because their intelligence on the ground in Afghanistan was non-existent, and they ended up forming alliances with extremely untrustworthy characters, who used them to advance their own purposes (removing rivals, for example, by lying about them), and thirdly because, when the prisoners ended up in US custody (in prisons at Kandahar airport and Bagram airbase, which were used to process them for Guantanamo) there was no screening process.

The Article 5 battlefield tribunals, used by the US in every war since the Second World War, were abandoned, which was shocking. Held close to the time and place of capture, these allowed the military to separate soldiers from civilians caught up in the fog of war by allowing prisoners to call witnesses. In the first Gulf War, for example, at least 1200 tribunals were held, and over three-quarters of the prisoners were freed. There was no such filter in Afghanistan, so farmers and taxi drivers ended up in Guantanamo.

More shockingly, as was revealed by Chris Mackey, the pseudonym of a senior interrogator in Kandahar and Bagram, who wrote a book about his experiences, the orders from on high (at Camp Doha in Kuwait, where the prisoner lists and interrogation notes were sent) were that every single Arab was to be sent to Guantanamo – there were no exceptions whatsoever – and until June 2002 every Afghan was sent as well, until the local commanders found a way to hide the Afghans off the books to weed out some of the more obvious farmers and taxi drivers (although even this ploy failed to prevent dozens more Afghans being sent, pointlessly, to Guantanamo).

(Online Participant: There’s a rather apropos article up over at the NY Times for tomorrow on this topic. Despite Ruling, Detainee Cases Facing Delays...Running out the clock on everything, including unlawfully held prisoners.)

...It does appear that the Administration’s strategy is called “January 20, 2009.” This is a unique context where detainees have won not once, not twice, but three times before the U.S. Supreme Court… and nearly 7 years later, not a single one has had an on-the-merits hearing in a United States courtroom…

Stacy Sullivan HRW(answers here the earlier question: what brought you to this story)Before I came to Human Rigths Watch, I was a journalist. I covered the war in Bosnia for Newsweek magazine, which had a pretty profound influence on my world view. As a journalist, I often felt paralyzed and always had a tough time walking the line between journalism and activism.

As I was struggling with this issue, I did a magazine story about Guantanamo Bay. It was a profile of the corporate lawyers in New York who were working pro-bono on habeas cases. It was after that story that I decided to make the move. I’ve been at Human Rights Watch for about two years now, working on counter-terrorism issues, primarily focused on Guantanamo. I’ve been down there several times, including last week, for some of the military commission hearings...

Scott Horton (online participant): Andy, you’ve recently written about the six prosecutors at Gitmo who have decided to “come in out of the cold” by refusing to proceed and about General Thomas Hartmann, who serves as the Bush Administration’s political enforcer. Hartmann has now been sanctioned three times by the courts for unprofessional conduct–the sort of thing that usually produces disbarment. Yet Hartmann just got another promotion, to a still more powerful position running the Gitmo show trials. The entire process has become a huge embarrassment for American ideas of justice. But how does a new administration turn this around after January 20, 2009?

Andy: This is from a recent article I wrote about this: “Now imagine that, after six and a half years of this imprisonment — in which, unlike convicted criminals on the US mainland, you have never been charged or tried, and have not been allowed a single visit from your loved ones — the highest court in the United States rules, in Boumediene v. Bush, that you have habeas corpus rights; in other words, the right to know why you are being held. And finally, imagine that, in response to this ruling, when the judges responsible for establishing the reviews have ordered the cases to be addressed “as expeditiously as possible,” and have set a deadline for the government to comply, your captors turn around and say that, after holding you for up to 2,444 days in Guantánamo, they need more time to prepare a case against you.

You would, I think, be appalled, and would conclude that the government was specifically dragging its heels for political purposes, hoping to avoid humiliation ahead of the Presidential election, and, in particular, hoping to prevent a replay of the verdict in Parhat v. Gates, the only case reviewed since the Supreme Court made its ruling in June, in which the judges — two Conservatives and a Liberal, no less — ruled that the designation of Huzaifa Parhat, a Chinese Muslim, as an “enemy combatant” was “invalid,” and lambasted the quality of the government’s evidence as being akin to a nonsense poem by Lewis Carroll, author of Alice’s Adventures in Wonderland...find more on this item bottom post under the three asteriks ***...

Andy Worthington: Hi Stacy, Reports from various insiders over the years (CIA officials who spoke to the New York Times in 2004, for example) indicated that only between two and three dozen had any meaningful connection with al-Qaeda. To that we can add some (but not all) of the 10 further prisoners who arrived from secret prisons in September 2004 and the 14 “high-value detainees” who arrived in September 2006. As for the rest, I’d say up to half were completely innocent men, and the others were Taliban foot soldiers, recruited to fight an inter-Muslim civil war that began long before 9/11.

Andy: In response to Scott Horton Hi Scott, Great that you’re here. I can’t see that the Commissions’ tattered credibility can survive into another administration to be honest - especially as it’s so particularly driven by Addington and Cheney. As the Convening Authority - the supposedly impartial figure presiding over the decisions about who to charge etc - is close to both men, I wonder if she will survive a change of administration. I’m expecting that further revelations will rock the Commissions further before the elections, and that a new administration will have to whittle the population down to the true hardcore (i.e. not 80, as the administration claims, padding out its figures with teenagers and/ or insignificant Afghans) and transfer them to the US mainland for trials in federal courts...

...All of this was pretty obvious in real time. Gitmo not in control of U.S., how stupidly ludicrous is that? And if you pay bounties for “terrorists,” of course you are going to get every Tom, Dick & Harry (or whatever the Afghan equivalent is) who have enemies turned over by them.

I am so frustrated at seeing this administration doing so many things that not only didn’t work, but actually caused the opposite outcome. I don’t know where to begin.

How about this: why did the military go along with paying bounties. It must be part of military lore from any engagement throughout all of human history that paying bounties means you get their enemies, not your enemies. Was there some general who forced Cheney’s policies on an otherwise smarter military? Or is the U.S. military just that incompetent?

Stacy: Andy, how long did it take us to figure out that most of the detainees weren’t the hardened terrorist suspects the administration claimed they were? And how did that information come to light?

Andy: The report compared by Mark and Joshua Denbeaux and their team at Seton Hall U. Law School of 517 detainees still held as of 2006 concluded that only 8%– which would mean around 40 or so– were even accused of being al Qaeda members or affiliates in the government’s own combatant status review tribunal (CSRT) reports, which is, of course, consistent with Andy’s numbers.

(some items left out)...when you read about “allies” like the notoriously corrupt Gul Agha Sherzai, former Kandah governor, who was paid for his support routing the Taliban with Land Cruisers full of cash (on more than one occasion), you realize that buying influence was built in to the whole invasion plan to prevent having to commit many ground troops. I see the bounties following on logically from this. A great, great book on this is Srah Chayes’ The Punishment of Virtue

Stacy:...I’m abandoning my line of questioning — participants seem to know the background pretty well — and I’d like to pick up on the military commissions and the future of Gitmo. As you know, even the small number the administration has announced charges against (it’s 23 or 24 now) are not all hardcore terrorists. Among the first detainees to be charged were Omar Khadr and Mohamed Jawad, both of whom are charged with throwing grenades, and both of whom were teenagers at the time of the alleged offense. Why do you think the administration chose two kids who had no involvement in planning terrorists attacks, to prosecute amongst the first few cases?

Andy: I see the connection. Thanks. Hadn’t thought about it quite that way.

So paying people you don’t know to do your war for you has a downside, eh? Who could have known.

Kind of like paying Iraqi Sunni Arabs not to fight. That plan should play out well in the future. NOT.

...Irony on the Uighurs is that if we return them to their home country, China, they will “likely face torture”. We’ll forget about the fact that there is evidence that Chinese officials were permitted to interrogate them at Guantanamo.
(See below *** #2)

Many of the men still left at GTMO (beyond the 14 “high value” and those likely to be charged) are only being held because of “political difficulties” with returning them, be it to China, or North African regimes, or a few other places, where suddenly treaty obligations not to permit torture matter.

It’s a mess of the Bush Adminsitration’s making, and the next Administration may end up having to someday grant some of these men asylum in the US, lest they be wrongly imprisoned forever.

Stacy? (or online participant?) Omar Khadr and Mohamed Jawad, both of whom are charged with throwing grenades--The thing that I can’t figure out about those cases: Why is throwing a grenade at the enemy in a war a war crime? I thought lobbing grenades at the enemy was one of the activities that war is all about. Can you explain the U.S. assertion?

Andy: It was a slow, slow process. Particular triggers, I think, were the British prisoners released in 2004, who spoke out eloquently, and were followed by the Abu Ghraib scandal, which demonstrated that pictures are more powerful than words for the majority of people. And when lawyers were allowed in, the reports they disseminated (after they were miraculously cleared by the Pentagon’s censors) added to the picture.

What was difficult, until 2006, was that we didn’t even know who exactly was in Guantanamo. The names were not released until March 2006, following a lawsuit filed by the Associated Press (after a FOIA request had been spurned by the Pentagon). It was actually how I began my research for the book, when I asked myself, “Who’s in Guantanamo?” I’d been studying every available scrap of information about those who had been released, and had struggled with lists of possible prisoners prepared by the Washington Post and the British human rights group Cageprisoners. But it shows how impossible the task was that, when the list of names was finally released, it contained numerous names that were completely unknown.

Fortunately, the Pentagon was also forced to release 8,000 pages of the transcripts of the farcical tribunals that had taken place at Guantanamo, allegedly to review their status as “enemy combatants”, and although these were horribly unfair, as they relied on classified evidence, often obtained through torture, coercion or bribery, and also prevented the prisoners from having legal representation, they at least allowed them to tell their stories. It was by transcribing these documents, and arranging them in chronological order, that I was able to tell the stories in “The Guantanamo Files.”

Online participant?: China doesn’t want the Uighurs. And it’s more likely they would be “disappeared”, as a Chinese friend of mine puts it.

Andy: The government’s position is now that being at war with the United States is itself a war crime; this was actually the basis of Hamdan’s conviction, for transporting mortars that would be used against American military forces (rather than civilians, the targeting of whom would be a “traditional war crime”). Throw in the fact that we are not only prosecuting ordinary belligerants (who would have belligerant immunity), but juveniles, whom we are under treaty obligations not to treat this way, and you realize that the whole thing is being improvised, which explains a great deal.

Are there going to be any other show trials before 11/4? I know that KSM is planned for an October surprise, but one doesn’t hear much about it, and I suspect it is because they can’t figure out a way around the torture evidence. Even though they say it will be allowed, the actual prospect of doing so may be making them hesitate.

Stacy: Can you tell us a couple of the more ridiculous stories? One of my favorites is Murat Kurnaz. His CSRT transcript alleged that he was close with a suicide bomber who had blown himself up at a synagogue in Istanbul. Once he got a lawyer (which took 3 years), it took about a week to figure out that the alleged suicide bomber was alive and well and living in Bremen. It took another 2 years to get Kurnaz released. Are there other stories like that?

Andy: To follow up the point, the whole premise (which has been rejected more than once now by the US Supreme Court) is that the President could abrogate Geneva Convention treaty obligations with respect to those captured in “the war on terror” on the (legally wrong… outrageous, actually) theory that Afghanistan was “a failed state” and terrorists were not entitled to any protections anyway, so, in short, an improvised scheme to hold and prosecute was just fine.

Online participant Discussion: The Justice Department says that it won’t allow Parhat to even set foot in this country. Atty. Gen. Michael Mukasey has long resisted any efforts to allow detainees inside the country, even for court hearings.

What a surprise a Bush AG acting in the name of injustice. How do we get around this?

Andy?: The government’s position is now that being at war with the United States is itself a war crime...Well that would explain it. As I often say, my imagination is not rich enough to figure out how those people think.

Andy: (In response to Stacy)--Brig. Gen. Thomas Hartmann, who, until his dismissal on Sept. 19, was the legal adviser to the Commissions’ Convening Authority, thought that they were “sexy” cases, involving battlefield bloodshed, that would capture the imagination of the American public. This according to former chief prosecutor Col. Morris Davis, who resigned last fall after complaining vociferously about Hartmann’s interference (Hartmann, like Crawford, was supposed to be impartial).

To me, however, putting prisoners forward on “war crimes” charges is despicable when, like Omar Khadr and Mohamed Jawad, they were juveniles at the time. The Optional Protocol to the UN Convention on the Rights of the Child (in wartime), to which the US is a signatory, is clear that juveniles - those under 18 at the time of the alleged crime - should receive rehabilitation and not punishment (and in Khadr’s case, of course, this applies to Canada too, which has shamefully abandoned him).
In addition, of course, there’s a problem with the whole “war crimes” scenario, as Jawad, an Afghan, allegedly threw a grenade, wounding two US soldier sand an Afghan interpreter, in Afghanistan, in a situation that looked remarkably like one of war.

Another participant: Guantanamo was chosen because it was presumed to be beyond the reach of the US the fact that the facilities were already in place...
Operation Sea Signal--Camp X-Ray

Andy:...As you say, if you engage in combat with the post-9/11 US, whose guiding legal mind is David Addington, you are automatically a terrorist.

Stacy?: But interestingly, in both Hamdan and in a pre-trial ruling in Jawad, judges have ruled that it is not automatically a war crime to be an “unlawful enemy combatant” and have done something like thrown a grenade or transported weapons. You have to have been part of a group participating in an armed conflict. Throwing a grenade might be attempted murder, but it is not necesarily murder in violation of the laws of war.

General Dialogue (impossible to tell who is saying what)What gets me is the US emboldened China further, calling separatist groups, terrorist groups.

Another thing to note is just how many of the “war crimes” charges are of the nebulous– and fictional as a matter of the laws of war– “conspiracy to commit war crimes” charge (including 7 of the first 10 charged, including Hamdan, who were charged with only conspiracy).

Amazing, of course, that the decisions made for “our Nuremberg” were the equivalent of ...Hitler’s chauffeur or a Nazi footsoldier (as Hamdan and Hicks)… but… “9-11 changed everything”, I suppose, including our senses of magnitude.

Agitate? ...It’s massively important. Now clearly an Obama victory would make Europe more likely to help close the mess at Guantanamo created by the Bush administration, as the State Dept has been shopping round a list of cleared prisoners to European countries for years now, with no success. And this may change - if Palin’s nowhere near any reins other than those of a horse - and Obama gets in. But the argument that the US has an obligation to take the Uighurs - and look at the Parhat verdict for confirmation of their complete innocence - is a strong one, I think, though hard to sell in a climate where the Dems are not even talking about terrorism and the crimes of the administration...

...There was an awful lot of pushback from the uniformed military judges against “the rules” that their civilian overlords tried to impose on them, to be sure. Perhaps part of the reason that Addington (and his protege Haynes) have always so despised the uniformed military, especially the TJAGs.

...It’s kind of sickening. The whole “unlawful enemy combatant” seems to mean that no country has a right to defend itself against the US.

Andy: (following earlier threat/question from Stacy)...Well I think, Stacy, as the administration found out to its horror in Hamdan’s trial, both the military judges and juries on these trials have not necessarily been indoctrinated sufficiently well by the Office of the VP, and maintain both their ability, and their insistence, on making up their own minds about the supposed demands of the “new paradigm.”

As an aside, I drove past the U.S. secret detention center in Poland in JUNE 2001. I was visiting a distant cousin, who was touring us all over eastern Poland, and we were on our way to meet another relative. As we drove by this complex with about a 6′high wall, my cousin said: That’s a military base. When the Russians moved out, the U.S. moved in. Fast forward to about summer 2007, when rawstory reported where the base was in Poland. I got out my road maps, and sure enough, same place.

Partipant (getting back to earlier thread) And how do we agitate? What are some ideas?

Andy: This is going to get even harder in the context of the in-progress financial meltdown; bad enough people were scared s***less of “the terrorists” to fail to ask themselves the question of “just who are we holding…? how do we know we have the right guys, and not some innocent unfortunates just swept up?… and ISN’T KNOWING THE DIFFERENCE CRITICALLY IMPORTANT?” Throw in economic worries and the “why should we worry about them?” momentum may be overwhelming.

The good news is that just about every single ex-Secretary of State we have had (including Kissinger) has said that the number one goodwill gesture this nation can undertake to improve our standing in the world (and hence, get allies to do some of the heavy lifting to police the world… and SAVE US MONEY)… (one such gesture) is to close GTMO. For that alone, I’m somewhat hopeful that just the exit of this Admin., even if its McCain, whose chances don’t look so good at the moment, will be very helpful.

Stacy?: Indeed. So maybe the question should be, why didn’t they do a better job of indocrinatinating the judges and the military jury?

(lost thread?)

Andy: (focusing on three key cases, evidently referring to earlier question?)Mohammed Sadiq, who was Guantánamo’s oldest prisoner. 88 years old at the time of his capture, he was apparently seized because his nephew had worked for the Taliban. US forces bombed his house, took all his belongings, and delivered him to the prison at Kandahar. He was one of the first detainees to be released, in October 2002, but the fact that he was sent to Guantánamo at all was a disgrace, and it was reported, after his release, that he was unable to come to terms with what had happened to him. His age adds an extra element of poignancy to his story, but it is actually fairly typical of a large number of the 230 or so Afghans who were held at Guantanamo.

Then there’s Abdul Razeq. He was a severely disturbed schizophrenic, who was kept isolated in Kandahar, because, amongst other things, he had a tendency to eat his own excrement. In a dehumanizing touch, the soldiers referred to all the detainees as “Bob,” and Razeq was known as “Crazy Bob.” He too was sent to Guantánamo, but was flown back to Afghanistan in May 2002. Chris Mackey noted that he arrived “strapped down in the center of the plane like Hannibal Lecter.” He was then placed in a maximum security cell in a hospital, where a journalist interviewed him. He was so disturbed that he described the prison at Kandahar as a “hotel,” and said that the Americans had taken him to Guantánamo “to treat my mental problems.”

At least 120 prisoners were seized in Pakistan, either because they were easy targets for soldiers or policemen looking for bounty payments, or because they were being repaid for having previously opposed local corruption.

This was what happened with Adel Hassan Hamad, a Sudanese hospital administrator, who had been living and working in Pakistan for 17 years. Hamad had spoken out when local Pakistani forces had stolen supplies from his warehouse, and he therefore ended up in Guantanamo. His lawyers – the Oregon Federal Defenders, including Stephen Wax – did a great job in his case, and he was released last December. Some readers may recall that there was a website set up to publicize Adel’s case, and Steve wrote a great book, Kafka Comes to America.

All these stories - and many, many more, of course - are in the book. Adel’s is here as well (plus that of another humanitarian aid worker, Salim Adem):

Participant Comments: Yikes I remember reading either The Berlin Diaries by Marie Vassiltchikov or it might have been a Victor Klemperer book. Even passing one of the the “non-death” camps, at a certain comfortable distance made the passenger uneasy.

...I can almost see Sarah Palin winking and smiling to us as she references “that shining interrogation center on a hill!” Hey, we adopted Communist methods,00.html so why not their facilities?

Stacy or participant?: Andy, how do you see the closure of Gitmo playing out? There are quite a few detainees who don’t want to go home for fear of abuse, ill-treatment, torture (Uihghurs, an Uzbek, Algerians, Egyptians and others). You think the US would give them political asylum? Will it be possible to resettle them in third countries?

And if we transfer the military commissions cases to federal courts, how do we deal with the fact that neither politicians nor the public want terror suspects coming to their states? Where do we hold them?

Andy?: There are lots of other absurdities besides the detainees, such as the fact that for a while, virtually any Muslim American soldier or civilian employee (such as famously Chaplain Capt. James Yee, who I interviewed here ) was picked up, and frequently, charged and treated like the detainees… West Point grad Yee, of course, was wholy exonerated, but not after being threatened with death penalty offenses, held in solitary confinement, humiliated… and, well… you get the idea.

...It’s been a slow crawl legally since Guantanamo was set up, but the Supreme Court’s verdicts in 2004 (Rasul v Bush), 2006 (Hamdan v Rumsfeld) and 2008 (Boumediene v Bush) all show that the weakness in Addington and Cheney’s plan for a dictatorship is that they didn’t lock up all the judges as “enemy combatants” too. Sadly, of course, in terms of the health of America’s body politic, the politicians have failed horribly to check the executive on several occasions - in particular 2005’s Detainee Treatment Act, and 2006’s Military Commissions Act (I’m keeping focused on the topic here, not wandering off to all the other examples of lack of restraint and oversight). And it’s why, having ruled parts of both acts unconstitutional this summer, they granted the prisoners constitutional habeas corpus rights, so that no one - whether with dictatorial delusions in the executive, or with blinkers on in Congress - can mess with their ruling.

...Of course, I didn’t know until 6 years later (after the June 2001 trip in Poland) that (what we saw)was a secret detention center. But I certainly didn’t like the idea of the U.S. moving in after the Russians moved out. What gd business did the U.S. military have in that backwater very rural part of Poland? Couldn’t be anything good...

From earlier thread...(one detainee)... was then placed in a maximum security cell in a hospital, where a journalist interviewed him. He was so disturbed that he described the prison at Kandahar as a “hotel,” and said that the Americans had taken him to Guantánamo “to treat my mental problems.”

Poor guy. Possible victim of bigotry as well as the Chimp administration? It bothers me that mental illness is often equated with criminal potential. It’s a dangerous bias.

Participant: Poland and Romania are what Rummy called ”the new Europe”. You know: the kind that will let us keep detention centers on their soil.

Andy?: Yee is one of my heroes of this whole dismal business.

It astounds me, when “know the enemy” is such a cliche, that the military exhibits NO knowledge of the enemy. So every Muslim becomes the enemy, regardless of other characteristics.

Stacy: Osama bin Laden’s media director, is slated for trial at the end of October. The verdict is expected, oh, right around election day. He is an unrepentant Al Qaeda supporter who has refused counsel and already admitted to everything and then some on his charge sheet.

Andy: Thank you. I’ll keep an eye on it. Looks like nothing can go wrong for W on that one, if your description is accurate.

Anything on KSM, or are they going to leave that mess to the next administration? (see answer in earlier part #45 in the full below)

Andy: I’m hoping that Europe will become more responsive after Nov. 4.
As for the Commissions, if they collapse, as they are doing, then the only option would be to continue to hold the prisoners indefinitely without trial, which I don’t think is acceptable forever. So the mainland beckons. People will have to get over it. There are people just as bad who’ve been held, tried, convicted and imprisoned on the US mainland. Hell, some of them are even Americans. Isn’t that more scary?
More seriously tough, terror suspects have been held, tried and imprisoned on US soil before without a hullaballoo. Take Ramzi Yousef, Khalid Sheikh Moahmmed’s nephew, who failed to blow up the WTC the first time round. He didn’t succeed, but he meant to. He was interrogated without torture, tried and imprisoned, and he’s on American soil now (in a maximum security part of America). The whingeing of those opposing tranferring prisoners to the US mainland is just part of the fear-mongering - and to be honest, it’s cowardly. These tough guys complaining - as they think they are - should actually be tough. KSM’s not going to escape if you move him to the mainland, and nor are al-Qaeda going to spring him. That’s ludicrous.

mui1 October 4th, 2008 at 3:08 pm 69
In response to Stacy Sullivan @ 57
I think we have to resettle them in this country. Especially the Uighurs. Sh*t, I wish someone could eventually take up all their cases so they could get the same kind of reparations that wrongly imprisoned sometimes get in this country.

karmamountain October 4th, 2008 at 3:08 pm 70
In response to eCAHNomics @ 60
Any idea which administration was in charge when the US military took it over?

...As yes, but he doesn’t want to put up a defense and is, essentially, boycotting it.
I think that will be hard to sell as justice being seen to be done.

...Take Ramzi Yousef, Khalid Sheikh Moahmmed’s nephew, who failed to blow up the WTC the first time round. He didn’t succeed, but he meant to. He was interrogated without torture, tried and imprisoned, and he’s on American soil now (in a maximum security part of America). The whingeing of those opposing tranferring prisoners to the US mainland is just part of the fear-mongering - and to be honest, it’s cowardly. These tough guys complaining - as they think they are - should actually be tough. KSM’s not going to escape if you move him to the mainland, and nor are al-Qaeda going to spring him. That’s ludicrous

I read that Ramzi became good friends with one of the guys involved with the Oklahoma bombings. And then they fell out. Gotta check that story out.
But it’s true. We already have real terrorists in US prisons, so the Chimpo argument is stupid.

Stacy: Al-Bahlul is a gift to the administration. The lawyer, Maj. Frakt, has already waved all right to discovery. The judge allows al-Bahlul to rant and rant and rant about how much he hates America.

Re KSM (Khalid Sheikh Moahmmed) et al., I can see there being another hearing, maybe even two, before the end of the year, but it will be a while before that case can go to trial. They still have to determine if Ramzi Binalshibh is crazy, whether or not the accused are entitled to translations of the court transcripts (the translation is apparently so bad that the guys can’t understand what is happening in the courtroom). And the judge, as you might of heard, is scheduled to retire on April 1. Apparently he thought he could reside over a capital case and have it all wrapped up before then.

Andy?: No idea. I suppose it could have been either Bush 41 or Clinton. I didn’t ask when it happened. I was too embarrassed so I just let the topic drop.

...Of course, the charges against al-Bahlul, though arguably serious (he made propaganda videos and attended terrorist training camps), do not make him OBL or al Zawahiri, now do they? While trotting out the 14 “high value” terrorists in 2006 got Congress to roll over and die… the electorate wasn’t swayed… I’m not sure that the deliberate timing (reminds me of Saddam’s conviction too, right around the ‘06 mid terms) will be of much affect any longer… the novelty of this seems to have worn thin…

(participant?)Usually when defendants want to take up their own defense, it looks like a sign of crazy.

Response: For sure. It won’t look anything like justice being done. But it won’t move the American public to care about how unjust the military commissions are either, will it?

...(then there's) the Abu Omar trial; Stacy’s colleague at HRW Joanne Mariner talked to me about that (she talked to Abu Omar himself). He is an Egyptian, rendered to Egypt, where he was… abused. The CIA executed really poor trade craft there, as they were traceable through luxury hotel credit card charges, open cel-phones, etc. It’s bad enough they are executing evil policy… but they’re not even all that good at executing it!

(again a note on the center in Poland summer, 2001)the U.S. military had already moved in by the summer of 01 when I drove by. So they had control of the facility a long time before it became a secret detention center.)

(another thread)...up to 50 of the prisoners in Guantanamo were subjected to “extraordinary rendition” and torture in secret CIA prisons or proxy torture prisons in other countries, the story you’re referring to (Abu Omar, snatched off a street in Milan) is part of the story of “America’s Disappeared” that lies behind Guantanamo - and that also needs sorting out, of course, unless a new administration is happy having the CIA run a seemingly limitless kidnapping and rendition program, and running secret torture prisons.

...Luv that word, tradecraft. When applied to CIA it would seem to be an oxymoron.

...(this possibly an answer to Stacy's question about what happens to military commissions if McCain takes over) Andy: It’s a problem for everyone involved, really, because the commission rules don’t (or at least they didn’t) allow for a defendant to be able to see classified evidence against him… only a military officer with clearance could see that… which in part is why the defendants are required to have military counsel. So, such counsel has an ethical dilemma in a case like al-Bahlul, because you are obliged to represent him, but cannot do so competently and still consisently with the client’s wishes… and the client per se cannot defend himself competently because evidence he can potentially use is being withheld from him!

“Mess” is a nice one-word description.

...Although in terms of US judges, I don’t exactly see the Padilla case as a shining example of justice.

...The OIG report on FBI participation in abusive interrogation says that the Defense Department allowed the Chinese to interrogate the Uighurs, and even softened them up with frequent flyer treatment.

Here’s a question I get a lot (Andy?)

Given that so many of the detainees were subjected to “extraordinary rendition” and possibly tortured, would it even be possible to try them in federal court since much of the evidence against them would not be permitted?

...(participant?)I am one of those people that thought Padilla was definitely not guilty beyond doubt.

(Andy continuing to respond to Stacy's question about McCain?) ...He has flip-flopped so much - especially on torture - that I’m unsure--But I would think so (to continue with the Military Commissions?)--given that it’s implausible that any new administration can carry on with business as usual. It’s problematic, of course, as it would be sheer folly to transfer the 263 prisoners currently in Guantanamo, when 50+ are the cleared prisoners who can’t be repatriated because of fears that they will be tortured, and over a hundred - still regarded as “too dangerous to release, but not dangerous enough to be charged” - shouldn’t be there at all. So that still involves finding third countries for some (or the US route), repatriating others, and coming to an arrangement with Yemen to unblock the long diplomatic impasse that has left 95 Yemenis still in Guantanamo (with only 13 released), while almost all the Saudis have been repatriated to the rehabilitation program approved by the US.

(participant) I think Andy will concur… don’t get us started on Padilla!!! Note how it all started… the first judge (who, btw, was reversed by his local federal appeals court, only to have the Supreme Court make up “venue” as the highest of all juridical principles) was none other than our own esteemed U.S. Attorney General Michael Mukasey.

To this day, the Bush Admin. has relied on the same rationale to hold lawful resident Saleh al-Marri, and asserts it can pick up you or I any time in the name of “national security” 4th Amendment and the rest of the Bill of Rights be damned! And there are lots of similar traps now inserted in various statutes of the government’s “right” to do so…

Padilla is really what drives the rest of this, IMHO… we have, from time to time, done unfortunate things in the name of “war” and “national security” (the Japanese internments were a much larger scale)… but to hold a citizen in a made-up-war?

Andy? ...And check out Ali al-Marri’s case if you haven’t seen it (the last US enemy combatant on the mainland):
It’s better than Guantanamo, though. They could have cut out Padilla’s three and a half year torture and just gone straight to a bent trial. So I’m not saying the court system is perfect by any means…

..Have you heard anything concrete about Yemen putting together rehabilitation program modeled after the Saudis?

And I’m quite curious about this group of 100 who are “too dangerous to release, but not dangerous enough to be charged.” I’ve always wondered who they are.

(general discussion continued...) What’s interesting is how inept the Bush Admin. has been about the whole thing; KSM more or less confessed everything to an al-Jazeera journalist before he was captured! He could have been convicted on that alone! And yet, they tortured him anyway!

The whole concept of sending “clean teams” to try to “re-interrogate” prisoners who had already been tortured is a remarkable showof cynicism and legal ignorance by people whose “lawyers” were effective legal advisors in the best tradition of mafia consigliori.

What they should do is a whole lot of “time-served” deals… the next Admin. may end up doing just that.

Andy? Yes it all appeared to be horribly rigged, and unjust:
But still an improvement on indefinite imprisonment without charge or trial (and torture).

From our friend Candace Gorman’s blog, we have this on the subject of Yemen and its efforts: It looks like “they’re talking about it”.

Anecdotally, my limited knowledge of some of the cases of those who are neither “cleared for release” nor “charged by the commissions” is that they are accused of not being A.Q. members, but of being members or affiliates of groups that have been deemed terrorist related, such as, for example, resistance to the Libyan government or others. As another Denbeaux report

...noted, most of those groups were not even on the government’s list of terrorist organizations until years AFTER detainees were accused of membership in them and so held!!!

How many administration executives, congressmen, have made trips to GTMO? How can they say they don’t know or not aware of situation, in relation to the care and torture of the prisoners?

...Well I tend to believe it has nothing to do with legality or justice. Face it, our preznit, Cheney/Addington and the rest of the cabal are sadistic. I guess there were persons who noted Bush’s sadistic tendencies already when he mocked Karla Faye Tucker.

I think you can sell a rigged trial (see the Padilla discussions, where the judge prohibited all mention of his three and a half years of torture in solitary confinement, the prosecution showed bin Laden videos and the Stars’n'Stripes-wearing jury handed down the required verdict), especially in the case of KSM and bin al-Shibh. It’s a horribly imperfect solution to the whole mess, but as the only alternatives are the Commissions or imprisonment without charge or trial for life, I don’t see what choice there is. No jury is not going to convict KSM and bin al-Shibh (as they’re on record confessing before they were captured), and there’s evidence against others too, but I think it’ll be tough to make a case against minor figures for whom no actual evidence exists.

While I’m here, though, I’d just like to point out how much I lament the tough guy torture mode that replaced the skilled FBI interrogators pre-9/11, and to make it clear that it is possible to pursue terrorists within the law. It’s important to know this in the face of a concerted effort by the adminstration (and parts of the media) to sell torture as the only tool available. It’s not. It remains morally repugnant and corrosive, and counter-productive.

participant?....Which congresscritter talked of watching a prisoner eating a baloney sandwich and praised the technique of the GITMO interrogators? Well it was during one of the congressional hearing, senate I think.

Andy? Most of them get the PR tour. It’s not reality.

participant: Lots and lots; but they were showed Potemkin villages… a dog and pony show…for example, perfect interrogations (noted in my interview with Army linguist Erik Saar ), or happy prisoners in the model exercise yard…

What’s truly interesting: none of them ever questioned what they were shown, even as it was all OBVIOUSLY a dog and pony show!!!

A late participant: Earlier, Andy you said this…

The Article 5 battlefield tribunals, used by the US in every war since the Second World War, were abandoned, which was shocking. Held close to the time and place of capture, these allowed the military to separate soldiers from civilians caught up in the fog of war by allowing prisoners to call witnesses.

Would you attribute the discarding of the Tribunals to the CIA’s presence, in that, early on in Afghanistan it was primarily a massive CIA op with only minor military participation…? In Jawbreaker it was mentioned that CIA agents utilized large amounts of cash to win over the Northern Warlords…

participant: Don’t forget Duncan Hunter going on and on about lemon chicken and rice pilaf!

Stacy? Interesting. I know that there is a list of detainees cleared for transfer or release. And there must be a list of those the government plans to charge (allegedly 80). But do they actually have a list of those who are too dangerous to release, but not dangerous enough to charge? Or is that just everyone else? Or all of the Yemenis because we can’t send people back to Yemen? Have you, or anyone else, actually done a breakdown of the 260 prisoners left?

I think you can sell a rigged trial (see the Padilla discussions, where the judge prohibited all mention of his three and a half years of torture in solitary confinement, the prosecution showed bin Laden videos and the Stars’n’Stripes-wearing jury handed down the required verdict),…

participant: You wouldn’t happen to know where that case presently stands, by any chance?

participant? Surely, that clusterfuck of a mockery of a trial was appealed….

...And meanwhile, Padilla was said to be completely distroyed mentally. How could he contribute to his own defense, after what he went through in confinement? I thought one psychologist/psychiatrist believed Padilla was brain damaged.
And really that could go for a lot of the detainees. Naomi Klein in Shock Doctrine, writes how easy it is to shatter the mind.

Andy to Stacy: It’s hard to work out who the 100 or so are (perhaps 120-130, actually) between those cleared for release, and those scheduled to face the Commissions. The problem is that we don’t know who the rest of the 80 are (beyond the 23 already charged), who are supposedly dangerous enough to face trial by Commission, and what we’ve had so far isn’t exactly inspiring. This was the last guy to be charged, another truly insignificant Afghan:
I’ve been through the cases of those remaining in Guantanamo and tried to figure out how they can possibly charge 80, and I just can’t work it out.

participant: Doesn’t it seem we’ve been down this road in history before. And now we have congress critters lauding what ever PR show they’ve seen. Are they so ignorant of history? Even in this country, supposedly visitors from the North were shown the “better looking part” of a slave plantation, and not say the malaria infested shacks, and starvation on the Georgia islands, plus whip marks.

Andy to new participant? Hello! You come to revive us after nearly two hours of typing! Clearly, as Jawbreaker shows, battlefield tribunals were regarded as irrelevant by Special Forces/CIA, who regarded everyone as guilty until proven innocent, but, like so much else, the general policy - for the military charged with running Knadahar and Bagram - was driven by Addington. I can’t recall where I saw this confirmed recently. Perhaps Jack Goldsmith mentioned it?

Bev, progam manager: As we come to the end of the Book Salon, any last words or thoughts? Andy, Thank you for stopping by the Lake today and spending the afternoon discussing Guantanamo and your book with us. Stacy, Thank you very much for Hosting this interesting Book Salon. Everyone, if you haven’t bought this book yet...This is one of the best books written about the Guantanamo prisoners. Thanks all.

Stacy: Andy, before we wrap this up, would love to hear your thoughts on today’s news about the Hamdan prosecutors claiming that the judge didn’t have a right to give Hamdan credit for time served, and asking him to recall the jury to reconsider its decision.

Andy: It’s on my “to check” list. TD, do you know where Padilla’s appeal stands at present?

...(participant?)Interesting. I know that there is a list of detainees cleared for transfer or release.

...Release to where? I feel sacred for the detainees. Really. Fruitsellers and 80 year old men alike.


...Funny you say that… we even have our own “GTMO”… a Ft. off of Brooklyn (Ft. Lafayette) was used by Lincoln to lock up dissenters during the Civil War… of course, that was a genuine “invasion or rebellion”. Still, what’s old is new again.

Andy? ...(on Padilla?) My understanding is that it’s a conventional criminal appeal Here --pending before the 11th Cir. Ct of Appeals in Atlanta, and it will take however long it takes…

:To learn more about all the GTMO detainees, please go here to access Andy Worthington's Active Site Here

Stacy?: Happy rest of the weekend everyone.

A litte final discussion between participants/Andy?

...Addington’s name crops up again and again.

Andy: It might’ve been Goldsmith… I found it interesting that Condi also had a role in the torture debate within the WH early on in ‘02… Some serious shirt going on from the get go with this Maladministration, eh?

Participants & Program Manager:(Thanks) for spending time here at the Lake, and, we appreciate all your efforts at exposing the fallacies…!

Participant in response to Andy: I think we need to be fired up time and time again over this issue. The story of some of these detainees is too haunting. Will definitely try to keep up with what’s on your site.

(This may not have been at the very end but it seems to fit here)
Andy: Stacy, Bev, everyone who’s contributed--Thanks for taking part.

In response to (one of the last questions (what a )...bleak and distressing farce that is the “War on Terror”. Hamdan was sentenced by military personnel in a trial system conceived in the Office of the Vice President. But when it didn’t go how the administration wanted, they start complaining. They’re presumably doing this because they have, finally, worked out that holding Hamdan as an “enemy combatant” after his sentence ends, which is what they claimed they had the right to do, would have shamed even Stalin, and so are now trying another desperate ploy.

I hope you all see through it, and that you encourage others to do so.
Thanks again...


Footnote/links (to be hyperlinked here soon)

The Parhat ruling is here: ***#1

*** #2

FAgain Andy Worthington's Site is the Major Site to Watch in the day's ahead

This blogger's disclaimer...apologies as my "version" here may be even more confusing than the full transcript posted by Stacy? on the Book Salon...anyway, the MEAT provides lots of heads up/nuts & bolts for those of us not as well-versed--and many of the answers by Andy, Stacy as well as responses, contributions, questions & discussions by participants are heavy-duty and stand solidly by themselves. When I get time, I'll try to revisit this to clarify if possible in short period of time--provide hyper-links, etc. Right now need to prepare to get up early as Obama will be nearby Sunday & I plan to give him through an aide a strong plea/letter with corroborated information about these items which he probably hasn't had the time to research well at all lately. Thankfully, Obama is well-versed in rule of law!)

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