This is a guest column by Andy Worthington, journalist and author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (Pluto Press). Visit his blog here.
Yesterday, as Barack Obama prepared for his inauguration, and even though George W. Bush has already made his last speech to the nation, hearings resumed at Guantánamo in the cases of a number of prisoners facing trial by Military Commission, the novel and much-criticized system of trials for terror suspects that was conceived by Vice President Dick Cheney and his close advisers in the wake of the 9/11 attacks.
According to some reports, President Obama will call a halt to the Commissions within days of taking power, as his team prepares to review the cases of the remaining 242 prisoners, to decide who can be freed and who will be transferred to the mainland to face a trial in a federal court.
I sincerely hope that this is the case, but in the meantime it appears to be business as usual at Guantánamo. Yesterday’s cases involved the last scheduled pre-trial hearing in the case of Omar Khadr, a Canadian prisoner who was seized in Afghanistan when he was just 15 years old, and a mental competency hearing in the case of Ramzi bin al-Shibh, one of five prisoners accused of planning or supporting the 9/11 attacks.
As bin al-Shibh’s four alleged co-conspirators, including Khalid Sheikh Mohammed, were also in the courtroom, the world’s media took more of an interest in the trials than usual. They joined a small number of regular reporters, as well as relatives of victims of the attacks, who were flown in by the Pentagon in an effort to shore up the last tattered remnants of the Commissions’ legitimacy.
In truth, however, the game is up. Last week, Lt. Col. Darrel Vandeveld, a former prosecutor who left the Commissions in September, after explaining that he changed from being a “true believer to someone who felt truly deceived” when he discovered that the system was both unwilling and incapable of providing the defense teams with exculpatory evidence, submitted an extraordinary declaration in the ACLU’s habeas corpus petition on behalf of the Afghan prisoner Mohammed Jawad. Vandeveld’s declaration exposed, in excruciating detail, how the Commissions’ prosecution office was “chaotic,” and how only a combination of luck and diligence led to his discovery that Jawad was almost certainly not responsible for the grenade attack on two U.S. soldiers and an Afghan translator, for which he was charged, and was, instead, a dirt-poor refugee who was tricked into joining an insurgent group and was drugged at the time of the attack.
Like Omar Khadr, Jawad was a juvenile when seized, and according to the Optional Protocol to the U.N. Convention on the Rights of the Child (on the involvement of children in armed conflict), to which the U.S. has been a signatory since January 23, 2003, both young men should have been cared for through physical and psychosocial rehabilitation and social reintegration, rather than being put forward as the first juveniles to face war crimes charges in the United States since the Second World War.
Lt. Col. Vandeveld’s declaration was not the only blow to the Commissions last week. In an even more damaging incident, Susan Crawford, the Commissions’ Convening Authority, who is responsible for overseeing the trial system and deciding who is to be charged, admitted that she had refused to proceed with a trial last year in the case of Mohammed al-Qahtani, a Saudi suspected of trying and failing to become one of the 9/11 attackers, because he had been tortured. “We tortured Qahtani,” she told Bob Woodward of the Washington Post. “His treatment met the legal definition of torture.”
This extraordinary admission — the first by a senior administration official — is so significant that it immediately became apparent that, under the terms of the U.N. Convention Against Torture, to which the U.S. is also a signatory, President Obama will be obliged to pursue those responsible for war crimes.
Moreover, while it has been apparent since a log of al-Qahtani’s interrogation was released in 2005 (PDF) that his 50-day ordeal in late 2002 and early 2003 was indeed torture, the techniques to which he was subjected did not include waterboarding, an ancient torture technique involving controlled drowning, which was reserved for the supposedly “high-value detainees,” Khalid Sheikh Mohammed, Abu Zubaydah and Abdul Rahim al-Nashiri. Al-Qahtani was, rather subjected to a combination of other techniques that were applied to over a hundred other prisoners in Guantánamo.
As a Senate Armed Services Committee report concluded last month (PDF), these techniques, which included “stripping detainees of their clothing, placing them in stress positions, putting hoods over their heads, disrupting their sleep, treating them like animals, subjecting them to loud music and flashing lights, and exposing them to extreme temperatures,” were partly derived from techniques used by Chinese Communists in the Korean war to produce false confessions. Taught in U.S. military schools as part of a program known as SERE (Survival, Evasion, Resistance, Escape), which was designed to teach U.S. personnel how to resist interrogation if captured, the techniques were reverse engineered for use in the “War on Terror” with baleful results.
As the Committee explained:
The abuse of detainees in U.S. custody cannot simply be attributed to the actions of “a few bad apples” acting on their own. The fact is that senior officials in the United States government solicited information on how to use aggressive techniques, redefined the law to create the appearance of their legality, and authorized their use against detainees. Those efforts damaged our ability to collect accurate intelligence that could save lives, strengthened the hand of our enemies, and compromised our moral authority.
It remains to be seen how far-reaching the effects of Crawford’s confession will be, as the use of torture has infected every aspect of the detention policies instigated by the Bush administration in the “War on Terror,” but it is already clear that her words should have brought an end to the disgraceful pre-trial hearings that took place in Guantánamo yesterday.
In her interview, Crawford attempted to explain that she “let the charges go forward” in the trial of Khalid Sheikh Mohammed and his co-defendants “because the FBI satisfied her that they gathered information without using harsh techniques,” using so-called “clean teams” who gained fresh confessions without using torture. This is a ludicrous assertion, of course, as it ought to be apparent that a voluntary confession made by a torture victim may well be tainted by the original effects of the torture.
Moreover, Khalid Sheikh Mohammed and his co-conspirators are not the only prisoners put forward for trial by Military Commission who have been tortured in U.S. custody. Others include Abdul Rahim al-Nashiri, who was charged last July, and another “high-value detainee,” Ahmed Khalfan Ghailani, who was charged last March, and, as I reported in an article last March, Ahmed al-Darbi, a Saudi seized in Azerbaijan, who has claimed that he was tortured in the U.S. prison at Bagram airbase in Afghanistan, and Ibrahim al-Qosi, an alleged al-Qaeda operative. In December 2005, Lt. Col. Sharon Shaffer, who was assigned to represent al-Qosi during the Commissions’ first incarnation (before the Supreme Court ruled them illegal in June 2006, and they were then revived by Congress), explained that she “characterized his treatment as possibly torture but certainly inhumane treatment; he was held in stress positions for protracted periods, subjected to military dogs and sexually humiliated.”
When it comes to Mohammed Jawad and Omar Khadr, the two former juveniles facing trials, the situation is no better. Jawad’s Military Commissions judge has already dealt a devastating blow to the government’s case against Jawad by ruling that the only evidence against him — a confession made in Afghan custody after his capture in December 2002 — was the fruit of torture, and that a second confession, made hours later to U.S. forces, was produced under the effects of that torture. In addition, as was made clear in Lt. Col. Vandeveld’s declaration last week, Jawad was also subjected to abuse at Bagram airbase and at Guantánamo, where, over a two-week period in 2004, he was moved from cell to cell 112 times to prevent him from sleeping, under what was euphemistically termed the “frequent flier program,” but which, in the real world, would be known as prolonged sleep deprivation, which is itself a form of torture.
Similar problems afflict the case of Omar Khadr, who was tortured from the moment he was taken into custody at Bagram, despite being severely wounded after the firefight that led to his capture. Amongst other cruelties, Khadr was refused any medication for his wounds, was hung from his wrists for long periods of time, and, as an article in Rolling Stone explained, was “ordered to clean floors on his hands and knees while his wounds were still wet.”
In Guantánamo his torture continued, when he was subjected to the reverse engineered SERE techniques. He told his lawyers that he was “short-shackled by his hands and feet to a bolt in the floor and left for five to six hours,” and that “occasionally a U.S. officer would enter the room to laugh at him.” He also said that he was “kept in extremely cold rooms,” “lifted up by the neck while shackled, and then dropped to the floor,” and “beaten by guards.” In one particularly notorious incident, the guards left him short-shackled until he urinated on himself, and then “poured a pine-scented cleaning fluid over him and used him as a ‘human mop’ to clean up the mess.”
All this abuse took place even though, like Mohammed Jawad, Khadr was almost certainly not responsible for the main crime for which he was charged: killing a U.S. soldier with a hand grenade. In Khadr’s case, it was not until November 2007 that it became apparent that the prosecution had suppressed or even altered evidence that conflicted with the story that the Commissions were trying to sell: that Khadr was not a teenager but a terrorist.
As the ACLU calls on Barack Obama to scrap the Military Commissions, and to call off the proposed trials of two young men who have been brutalized for over six years in U.S. custody when they should have been rehabilitated, I leave the last word to Damien Corsetti, a former U.S. interrogator at Bagram. Accused of abusing Ahmed al-Darbi, Corsetti was cleared of the charges, and has since become a fierce critic of the administration’s “War on Terror” detention policies.
Today, as Corsetti arrived at Guantánamo to testify about what happened to Khadr at Bagram, where he was one of the few guards to befriend him, he explained to Michelle Shephard of the Toronto Star, “I firmly believe it was torture and unfortunately I took part in it … I was a believer at one time, I was. I guess this is just me trying to make it a little bit right. You know? Maybe get some closure to it. We'll see.”