FacebookTwitterGoogle+RedditEmail

Guantánamo’s Shambolic Trials

by ANDY WORTHINGTON

This has been another terrible week for Guantánamo’s Military Commissions, established by Dick Cheney and his close advisors in November 2001 to try, convict and execute those responsible for 9/11 through a novel process so far removed from the US court system and the military’s own judicial procedures that the tainted fruit of torture would be allowed, and secret evidence could be withheld from the accused.

Struck down as illegal by the Supreme Court in June 2006, the Commissions stumbled back to life later that year in the hastily passed and virtually unscrutinized Military Commissions Act (which, for good measure, stripped the Guantánamo detainees of the habeas corpus rights granted by the Supreme Court in 2004), but they have struggled to establish any kind of credibility.

Now apparently shorn of evidence obtained through torture (although evidence obtained through “coercion” can be allowed at the discretion of the government-appointed military judges), the Commissions were supposed to spring back to muscular life two weeks ago, when the administration finally got around to charging six men in connection with the 9/11 attacks, including Khalid Sheikh Mohammed, who has claimed that he was “responsible for the 9/11 operation, from A to Z.”

However, although the charges finally brought 9/11 back into the spotlight, the issue of torture — and the administration’s increasingly desperate attempts to hide the evidence of its own “extreme, deliberate and unusually cruel” practices — has clung, limpet-like, to the stories of these men, and does not look like being resolved any time soon, especially as the process of finding them military defense lawyers will, like everything else to do with the Commission’s stuttering five-year history, likely proceed at a glacial pace.

In the meantime, the cases that have actually made it before the Commissions remain mired in controversy. The administration’s decision to choose a child soldier — the Canadian Omar Khadr — as its first attempt at a real conviction (after the Australian David Hicks flew home last March following a politically-motivated plea bargain) continues to attract heated opposition.

This week, for example, the leaders of bar associations in 34 countries — including Australia, France, Finland, Iraq, Ireland, Romania, South Africa, Turkey and the UK — sent a letter to George W. Bush and Canadian Prime Minister Stephen Harper calling for the closure of Guantánamo, and specifically addressing Omar Khadr’s case. “For five years, Omar Khadr, a ‘child’ under the terms of the UN Convention on the Rights of the Child, has languished without trial in Guantánamo,” the lawyers wrote, adding, “There is reason to believe he has been subjected to treatment that is at best degrading and abusive and at worst amounts to torture Few governmental operations by democratic countries have shown such a profound disrespect for the rule of law. Guantánamo Bay has come to signify injustice for some at the hands of the powerful.” The lawyers urged that Khadr be “transferred to the custody of Canadian law enforcement officials, so that he can face due process under Canadian law and the principles of the rule of law,” adding, “We do not deny that some of those detained at Guantánamo may have committed criminal acts. If so, they should be tried by a properly constituted court operating under rules that guarantee a fair trial.”

Developments in the other case before the Commissions — that of Salim Hamdan, a Yemeni who was one of Osama bin Laden’s drivers — are even more distressing for the administration, as a surprising new witness has offered to step forward in his defense. Col. Morris Davis, the former chief prosecutor of the Military Commissions, was once a fierce advocate for the system, arguing, as recently as last June, that those who criticized Guantánamo and the Commissions failed to understand that, as he described it, “Reality for Guantánamo Bay is the daily professionalism of its staff, the humanity of its detention centers and the fair and transparent nature of the military commissions charged with trying war criminals.”

Less than four months later, Col. Davis’ opinions had changed dramatically. In September he “filed a formal complaint,” alleging that Brig. Gen. Thomas Hartmann, the legal adviser to retired judge Susan Crawford, the “convening authority” overseeing the trials, had “overstepped his mandate by interfering directly in cases.” He 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.”

The roots of Col. Davis’ discontent clearly predated his enthusiastic endorsement of the Commissions in June, and were focused not only on Brig. Gen. Hartmann, who was appointed to his role in July, but also on Susan Crawford, who was appointed in February as the Commission’s “convening authority” by defense secretary Robert Gates, and on Crawford’s immediate boss William J. Haynes II, the Pentagon’s general counsel.

Col. Davis was reportedly upset because Brig. Gen. Hartmann had been insisting that Salim Hamdan should be offered a plea bargain similar to the one that saw David Hicks released, even though prosecutors explained that it “would be a blow to the government’s credibility.” One unnamed prosecutor even went so far as to complain, “Think of our only other ‘success’ in this — David Hicks. How is that a success for the United States government? How does that justify Guantánamo?”

In addition, Brig. Gen. Hartmann was clearly opposed to what he perceived as the weakness of the cases that Col. Davis had chosen to pursue: those which, like Hicks, Hamdan and Omar Khadr, relied “largely on unclassified evidence,” allowing trials to be open to the press to address criticism that the process was “too secretive,” even though these cases tended to involve “relatively undramatic charges, such as providing services to a terrorist organization.” Hartmann, in contrast, wanted higher profile cases, which “could attract more public attention and perhaps also support for the tribunal system, even though they may involve closed proceedings.”

In addition, Col. Davis’ dissatisfaction with Susan Crawford clearly predated Brig. Gen. Hartmann’s arrival at the Military Commissions. As was revealed in October, David Hicks’ plea bargain was the result of an arrangement between Dick Cheney and Australian Premier John Howard, who had ignored Hicks for years, but was now suffering in an election year as Hicks’ plight gained ever more support among potential voters. After Cheney flew out to arrange the deal, it was Susan Crawford who pushed through the plea bargain at Guantánamo, working directly with Hicks’ defense lawyers and cutting Col. Davis out of the loop.

Col. Davis resigned on October 4, but it was not until December, when he wrote an op-ed for the Los Angeles Times, that his even more strenuous objections to the role of William J. Haynes II were revealed. With two months to refine his anger, Col. Davis refused to pull any punches. “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,” he wrote, adding, “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.”

After pointing out that it was “absolutely critical to the legitimacy of the military commissions that they be conducted in an atmosphere of honesty and impartiality,” Col. Davis explained 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, Susan Crawford had overstepped her administrative role, and “had her staff assessing evidence before the filing of charges, directing the prosecution’s pretrial preparation of cases (which began while I was on medical leave), drafting charges against those who were accused and assigning prosecutors to cases.” “Intermingling convening authority and prosecutor roles,” he continued, “perpetuates the perception of a rigged process stacked against the accused.”

After also criticizing Susan Crawford and Brig. Gen. Hartmann for their desire to conduct trials “behind closed doors,” because “Transparency is critical” and “even the most perfect trial in history will be viewed with skepticism if it is conducted behind closed doors,” Col. Davis directed his ire at William J. Haynes II. Noting that he resigned “a few hours after” being informed that he had been placed in a chain of command under Haynes, 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,” and pointed out, “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.”

Col. Davis was not the first prominent official to refuse to be implicated in the use of torture by US forces, of course, but while Attorney General nominee Michael Mukasey was busy equivocating horribly on waterboarding, skirting the issue in October, when he told a Senate Judiciary Committee, “if [waterboarding] amounts to torture, it is not constitutional,” Col. Davis’ attack on Haynes placed him, without a shadow of a doubt, in the anti-torture camp.

His focus on Haynes was also unerring. Appointed as the Pentagon’s Chief Counsel in May 2001, Haynes was a protégé of David Addington, Dick Cheney’s closest advisor and, arguably, the chief architect of the administration’s post-9/11 flight from the law, and as Senator Edward Kennedy explained in a Washington Post op-ed in 2004, he “developed and defended three of the administration’s most controversial policies: the refusal to treat any of the hundreds of prisoners at Guantánamo Bay as prisoners of war under the Geneva Conventions of 1949; the department’s military tribunal plan for trying suspected war criminals; and even the incarceration of US citizens without counsel or judicial review.”

Not only involved in the development of the concept of holding prisoners as “enemy combatants” without charge or trial, and without the protections of the Geneva Conventions, and of playing a part in the process that led to holding a US citizen, Jose Padilla, as an “enemy combatant” on the US mainland, Haynes was also deeply involved in the approval of “enhanced interrogation techniques” for use at Guantánamo and beyond in 2002 and 2003.

In November 2002, Haynes advised Donald Rumsfeld to approve the use of techniques that included prolonged solitary confinement, 20-hour interrogations, and the use of painful stress positions, and liaised between Rumsfeld and Alberto J. Mora, the head of the Naval Criminal Investigative Service, in January 2003, when Mora — a principled opponent of torture, like Col. Davis — threatened to expose the administration’s use of the techniques. Bowing to the pressure, Rumsfeld withdrew his authorization, but once Mora was placated Haynes oversaw a working group led by lawyer John Yoo and Air Force general counsel Mary Walker, which effectively reintroduced “enhanced interrogation techniques” on the sly, creatively bypassing international treaties banning the use of torture, and invoking the President’s “wartime” authority to act without any oversight whatsoever.

Last week, in the wake of the announcement that six “high-value” detainees were to be charged in connection with the 9/11 attacks, Col. Davis resumed his attack on the Commission process, and on William Haynes in particular. When asked by the Nation if he thought that the six men could receive a fair trial, he related a conversation with Haynes that had taken place in August 2005. According to Col. Davis, Haynes “said these trials will be the Nuremberg of our time ” — a reference to the 1945 trials of Nazi leaders, “considered the model of procedural rights in the prosecution of war crimes,” as the article described them. Col. Davis replied that he had noted that there had been some acquittals at Nuremberg, 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,” Col. Davis remembered. “At which point, his 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.'”

Having thoroughly exposed the preconceived notion of guilt in the Commissions, which infects the whole of the administration’s post-9/11 detention policies (in the tribunals at Guantánamo, for example, condemned by former insiders for being designed to rubberstamp the detainees’ designation as “enemy combatants” without testing the “evidence”), Col. Davis’ next trick was to declare, the day after, that he would appear as a defense witness for Salim Hamdan at his next pre-trial hearing in April. “I expect to be called as a witness,” he explained, adding, “I’m more than happy to testify,” and describing his decision, ominously for the administration, as “an opportunity to tell the truth.”

The final blow to the Commissions — for now, at least — came yesterday, when, without even attempting to address Col. Davis’ allegations, the Pentagon abruptly announced that William Haynes was resigning as Chief Counsel, “to return to private life.” A spokeswoman said that he had discussed leaving the administration “some months ago” and had “decided to accept an offer to work in the private sector.”

If you hear any squeaking, amid the deafening silence from Haynes himself, I’d suggest that it’s the sound of another rat leaving a sinking ship.

ANDY WORTHINGTON (www.andyworthington.co.uk) is a British historian, and the author of ‘The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison’. He can be reached at: andy@andyworthington.co.uk

 

 

 

 

 

 

ANDY WORTHINGTON is a British journalist, the author of ‘The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison’ (published by Pluto Press), and the co-director (with Polly Nash) of the new Guantánamo documentary, ‘Outside the Law: Stories from Guantánamo.’ Visit his website at: www.andyworthington.co.uk He can be reached at: andy@andyworthington.co.uk        WORDS THAT STICK ?  

More articles by:

CounterPunch Magazine

minimag-edit

bernie-the-sandernistas-cover-344x550

zen economics

Weekend Edition
February 24, 2017
Friday - Sunday
Jeffrey St. Clair
Roaming Charges: Exxon’s End Game Theory
Pierre M. Sprey - Franklin “Chuck” Spinney
Sleepwalking Into a Nuclear Arms Race with Russia
Paul Street
Liberal Hypocrisy, “Late-Shaming,” and Russia-Blaming in the Age of Trump
Ajamu Baraka
Malcolm X and Human Rights in the Time of Trumpism: Transcending the Master’s Tools
John Laforge
Did Obama Pave the Way for More Torture?
Mike Whitney
McMaster Takes Charge: Trump Relinquishes Control of Foreign Policy 
Patrick Cockburn
The Coming Decline of US and UK Power
Louisa Willcox
The Endangered Species Act: a Critical Safety Net Now Threatened by Congress and Trump
Vijay Prashad
A Foreign Policy of Cruel Populism
John Chuckman
Israel’s Terrible Problem: Two States or One?
Matthew Stevenson
The Parallax View of Donald Trump
Norman Pollack
Drumbeat of Fascism: Find, Arrest, Deport
Stan Cox
Can the Climate Survive Electoral Democracy? Maybe. Can It Survive Capitalism? No.
Ramzy Baroud
The Trump-Netanyahu Circus: Now, No One Can Save Israel from Itself
Edward Hunt
The United States of Permanent War
David Morgan
Trump and the Left: a Case of Mass Hysteria?
Pete Dolack
The Bait and Switch of Public-Private Partnerships
Mike Miller
What Kind of Movement Moment Are We In? 
Elliot Sperber
Why Resistance is Insufficient
Brian Cloughley
What are You Going to Do About Afghanistan, President Trump?
Binoy Kampmark
Warring in the Oncology Ward
Yves Engler
Remembering the Coup in Ghana
Jeremy Brecher
“Climate Kids” v. Trump: Trial of the Century Pits Trump Climate Denialism Against Right to a Climate System Capable of Sustaining Human Life”
Jonathan Taylor
Hate Trump? You Should Have Voted for Ron Paul
Franklin Lamb
Another Small Step for Syrian Refugee Children in Beirut’s “Aleppo Park”
Ron Jacobs
The Realist: Irreverence Was Their Only Sacred Cow
Andre Vltchek
Lock up England in Jail or an Insane Asylum!
Rev. William Alberts
Grandiose Marketing of Spirituality
Paul DeRienzo
Three Years Since the Kitty Litter Disaster at Waste Isolation Pilot Plant
Eric Sommer
Organize Workers Immigrant Defense Committees!
Steve Cooper
A Progressive Agenda
David Swanson
100 Years of Using War to Try to End All War
Andrew Stewart
The 4CHAN Presidency: A Media Critique of the Alt-Right
Edward Leer
Tripping USA: The Chair
Randy Shields
Tom Regan: The Life of the Animal Rights Party
Nyla Ali Khan
One Certain Effect of Instability in Kashmir is the Erosion of Freedom of Expression and Regional Integration
Rob Hager
The Only Fake News That Probably Threw the Election to Trump was not Russian 
Mike Garrity
Why Should We Pay Billionaires to Destroy Our Public Lands? 
Mark Dickman
The Prophet: Deutscher’s Trotsky
Christopher Brauchli
The Politics of the Toilet Police
Ezra Kronfeld
Joe Manchin: a Senate Republicrat to Dispute and Challenge
Clancy Sigal
The Nazis Called It a “Rafle”
Louis Proyect
Socialism Betrayed? Inside the Ukrainian Holodomor
Charles R. Larson
Review: Timothy B. Tyson’s “The Blood of Emmett Till”
David Yearsley
Founding Father of American Song
FacebookTwitterGoogle+RedditEmail