The Wiki Guantanamo files are as fascinating as they are dismaying, but their principal contribution does not lie in exposing how the Bush administration debased American moral, political, and constitutional values. There has been an abundance of that over the years. Their significance lies in their pulling back the curtain on how stupidly, haphazardly, arbitrarily, incompetently, and how contemptuously of detainees it was all done. The national security warriors couldn’t even keep the paperwork in order.
The Wiki files display the incredibly tangled ethical, legal, and administrative morass created by the Bush administration at Guantanamo. It took more than a year for Obama’s Attorney General to review the key case of Khalid Sheikh Mohammed, the supposed “mastermind” of the September 11 attack, and to decide that the Department of Justice would be able to win a conviction without using evidence obtained through months of waterboarding and other tortures. So the Attorney General ordered the transfer of the prosecution from the jurisdiction of a military commission at Guantanmo to the federal district court in Manhattan where Mohammed would be tried by the same rules as anybody charged with a crime by the government.
Holder’s decision to try Khalid Sheikh Mohammed in a civilian court was a welcome departure from the Obama administration’s failure to fulfill its pledge to rectify the ethical and constitutional transgressions of the Bush administration. The administration has backed off from prosecuting torturers and CIA officials who destroyed evidence of torture; the prison at Guantanamo will not be closed in the foreseeable future; the government will continue to try detainees in military courts. Trying Mohammed in federal court would open the trial to global scrutiny and would display the government’s re-commitment to the rule of law in its response to Islamist radicalism and terrorism.
Last month Eric Holder reversed himself. He capitulated to the demagoguery and fear mongering of militaristic Islamophobes and ordered the trial back to a military tribunal in Guantanamo. Opponents of the commissions are understandably dismayed by his retreat. As a practical matter, they regard the commissions as unworkable. No serious prosecution has yet been brought to completion. But the paramount criticism of the tribunals is that they are irredeemably defective. The organization and procedures of the tribunal fall unacceptably short of the constitutional norms that prevail in civilian courts. So in the court of world opinion, conviction by a military commission would worsen the moral blemish of Guantanamo. Justice will not be seen to be done, and in many cases justice won’t in fact be done. The Wiki files make it abundantly clear that fairness and common sense were not among the prevailing values at Guantanamo.
The basic premise in this critique of the tribunals is that the norms and practices of the federal court system are so far superior to the tribunals that justice will be done only when radical Islamists are prosecuted in civilian courts. This is an attractive proposition in the abstract. But when the actualities of cases are examined, the prosecutions look a lot less savory.
It is no news that there are many injustices, large and small, in the criminal justice system. As Lenny Bruce put it, “In the halls of justice, the justice is in the halls.” However, counterterrorism prosecutions have some distinctive pitfalls. The defendants are pariahs and may be regarded with intense displeasure in the communities from which the jury of their peers is selected. They can be convicted of violations of the Patriot Act for actions whose criminality is highly disputable. “Providing material support to terrorist organizations” covers a lot of ground. The Supreme Court has opined that it may encompass sending money abroad for schools and medical clinics or teaching political groups techniques of non-violent protest.
Finally, national security agencies and political rulers at the highest level may, in special cases, decide to throw their weight around in counterterrorism prosecutions. They influence or control of the case is not played out in public. They may deliberately cover their tracks. The following tale of two prisoners displays how the prosecution of radical Islamists in the civilian legal system has its own infirmities when rulers and guardians become invested in a case.
Each prisoner is a thirty year old, a Moslem, and an American citizen. Mohammed Junaid Babar is married and has a two year old daughter. He has served four years and eight months in prison; he is now free subject only to probationary supervision. The second man, who I will call here Abdul Hamid, is, serving the eighth year of a twenty year sentence in a federal penitentiary in Indiana.
It is hard to know whether Baba is just a very lucky man for having dodged a thirty year imprisonment for serious terrorist crimes, or whether he is a man with startlingly superficial loyalties and a robust knack for self-preservation, or perhaps all of the above. As for Abdul Hamid who has twelve more years to run on his sentence, it is hard to know whether he has worse luck in his timing or in the perfidiousness of his persecutors.
A few days after the September 11 attacks, Babar declared his allegiance to the radical Islamist jihad, quit his job and traveled to South Waziristan, Pakistan. He spent the next two years working for al Queda and was arrested when he returned to the United States.
He appeared in federal district court in New York City on June 3, 2004 where he was charged with violations of the Patriot Act. Babar was up to his eyeballs in working for al Queda. A five count information charged him with “providing material support or resources to a foreign terrorist organization,” which included organizing training camps, arranging transportation for recruits, supplying military gear, obtaining money and procuring explosives. He was specifically charged with attempting “to purchase ammonium sulfate and aluminum powder for destructive devices and bombs to be used in attacks in the United Kingdom.” He set up a training camp in which Mohammad Sidique Khan, the leader of the 2005 London suicide bombers, learned how to manufacture explosives. Fifty two people died and seven hundred were injured in the attack on the London transport system.
Babar plead guilty to all charges. This was no lone operator with explosives in his underwear or shoe but an organization man responsible for logistics. In his personal statement, he acknowledged providing “night vision goggles, sleeping bags, water proof socks, water proof ponchos, and money to a high al Queda official in South Waziristan.” He set up a training camp in Pakistan where jihadis on the way to fight American soldiers in Afghanistan “could learn how to use weapons?and any explosive devices that they wanted to test out over there.” And for the people who “had ideas?about plotting some targets in the United Kingdom, I provided some of the materials, like?aluminum nitrate ammonium nitrate, and aluminum powder that was then tested out at the training camp.”
Babar faced a maximum sentence of seventy years. The judge ordered a sentencing report from the Probation Office and scheduled a sentencing hearing in six months. The hearing did not occur for six years. In the interim, Babar served four years and 8 months in prison and was free on bail for the next two years until he appeared before the judge on December 10, 2010. The Probation Office recommended the thirty year mandatory minimum sentence set by federal sentencing guidelines. The judge sentenced Babar to the time he had already served and parole for ten years.
Although he was lucky to escape a lifetime in prison, Babar had to earn his good fortune. He switched his allegiance from al Queda to the United States and went to work as a “cooperator”. The judge was empowered to depart from the guidelines’ minimum only if the Justice Department formally declared that Babar was comprehensive and truthful in cooperating with counterterrorist investigators.
Babar was a prized informant because he had worked inside al Queda; he knew about the organization’s logistics, internal administration and daily operations. He was a prosecution witness in trials of former compatriots who had formed terrorist cells in Great Britain. The Government called his cooperation “extraordinary,” and the judge rewarded him.
Now consider the case of another thirty year old Moslem American citizen, Abdul Hamid whose journey through the criminal justice system was markedly different. In his teenage years, he became interested in Islam. He studied it seriously in his hometown in California. After his conversion, he traveled to Yemen to learn Arabic and the Quran. Seeking an ultra orthodox approach to Sunni Islam, he enrolled in a madrasa in Pakistan in the fall of 2000 where he was inculcated in the idea of militant jihad. He resolved to defend the Islamic Republic of Afghanistan (the Taliban regime) against the Northern Alliance, the rump coalition of warlords that had been holding out against the Taliban since 1995. He received rudimentary military training in Pakistan. Al Queda operatives were present; he even heard a speech by bin Laden himself. He declined to join al Queda because his goal was to defend the Islamic government and not battle with the world beyond Afghanistan.
With exquisitely bad timing, Hamid arrived on the front in northern Afghanistan on September 6, 2001. At that moment, the Twin Towers were standing, the Pentagon was intact, and the United States was not at war. Hamid was appalled by 9/11, but he was stuck between a rock and a hard place. Opting out was not an option. The Taliban would have treated him as a Moslem deserter or as an American spy. Defection to the other side was out of the question; General Dostum was not taking live prisoners.
In late November, Hamid was among five hundred Taliban fighters captured by the Northern Alliance. The surrender morphed into a week long chaotic melee in which more than four hundred prisoners died. Hamid was shot in the leg, and the man standing next to him, Mike Spann, one of two CIA operatives on the scene, was killed. During his entire truncated and misbegotten career as a jihad fighter, Hamid never fought against American soldiers.
He was handed over to the U.S. military and briefly mistreated with a nastiness that presaged the Bush-Cheney repudiation of the Geneva Conventions. Because Hamid had more first hand experience of the Taliban than any American on the planet at that time, he was interrogated by the U.S. military for most of the next two months. A January 14, 2002 memo recently released by Donald Rumsfeld charts his progress from military custody in Afghanistan to prison in America:
I don’t really care what happens to Walker [sic] at this stage. I know he going to the Department of Justice?the question is when.
He is on the USS BATANN, and the military doesn’t want him anymore. We could put him in Guantanmo Bay until we are absolutely certain that we not going to get anymore [sic] information about him or from him, or we could just give him to DoJ now.
Hamid’s citizenship spared him a trip to Cuba. He surfaced in a federal district court in northern Virginia in early February, 2002 to face a ten count indictment including a count of conspiracy to murder Mike Spann. After several months of legal skirmishing, a suppression hearing on a defense motion to exclude evidence from the interrogations was scheduled for July 15, 2002. Defense attorneys would have elicited highly embarrassing testimony from military personnel about the Government’s conduct and in the very unlikely event the judge had the courage to exclude the self-incriminating interrogations, the Government might have been left with an unwinnable prosecution. Three days before the hearing, the Justice Department made a non-negotiable plea offer of twenty years in prison; the offer was good for only three days. Hamid took the plea because the risk of conviction in a trial and forty years in prison was too great in the post-9/11 climate of hysteria, paranoia, and revenge.
The disparity in the actions of these two individuals is enormous. Babar chose to go over to America’s enemies. He joined al Queda and participated in the training of jihadists who then went into battle against American soldiers. He was involved in a spectacular, heinous terrorist attack in London. Hamid, on the other hand, arrived unluckily just days before 9/11, joined the Taliban before they were an enemy of the United States, fought only against other Afghan groups and never against Americans, had nothing to do with al Queda, and was not involved in terrorist actions.
The disparity in their treatment by the Government is also enormous. Each man cooperated with the Government; each was tried in a federal court; each was represented by highly experienced lawyers from arraignment to sentencing. But the far more morally reprehensible person was punished mildly, whereas the other, who was more hapless than bad and had no blood on his hands, was punished severely. Babar went to prison for four and a half years and Hamid for twenty.
The explanation of this disparity reflects the darkness of the first years of the “war on terror” after 9/11 and the abuse of power by political leaders.
Within days of his capture, Hamid had asked to see a lawyer; defense attorneys had notified the Departments of Justice, Defense, and State that they had been engaged by his family to represent him. The Sixth Amendment right to counsel and the Fifth Amendment protection against self-incrimination provide an accused individual a modicum of protection from the overwhelming power of the state. The Government made short shrift of Hamid’s rights. They did not allow his lawyers to meet with him until they had milked him dry of useful information.
In contrast to Babar’s lawyers who could bargain his storehouse of information and courtroom testimony against former comrades in exchange for a livable sentence, Hamid’s lawyers had nothing more to offer. The government had extracted all that he knew before he was allowed to meet his lawyers. So Babar was out of prison in less than 5 years, whereas Hamid could either go on trial in a hostile courtroom down the road from the mangled Pentagon and risk a forty-plus year imprisonment or he could take whatever sentence reduction the Government deigned to offer.
Because Hamid was no longer useful as a cooperator, the Government had no reason to be generous. This raises the question as to why they bothered to make any plea offer at all. They made the offer because they needed to cover up their violation of his constitutional rights and to deter his lawyers from publicly challenging the admissibility of Hamid’s self-incrimination. Attorney General John Ashcroft and lawyers in the White House were warned by an attorney in the Justice Department’s Office of Professional Responsibility that questioning Hamid without his lawyers being present violated professional norms and that the interrogations would not be admissible in a trial. The Bush administration quashed the warning by firing the lawyer Jesselyn Radeck and “losing e-mails” pertaining to her memo when Congress tried to investigate.
Compared to Babar’s offenses and punishment, Hamid’s sentence is utterly disproportionate to his offense. This raises the question as to why the Government was so harsh. It stands to reason that a lesser sentence would have been just as effective in deterring the defense from pressing its case. But the Bush administration had political reasons for imposing a draconian punishment. Hamid, who is better known in the U.S. as John Walker Lindh, was the administration’s poster child for its new War on Terror. Lindh was the very first detainee in the Afghan war. John Ashcroft, Karl Rove and other major domos of the Bush administration called for his scalp. He was branded the “American Taliban,” a fanatic enemy and a traitor who had to be locked away as a sign of resolution and toughness.
The harshness of Lindh’s sentence was calibrated not to the seriousness of his offense but the political imperatives of the Bush administration. The violation of his constitutional rights in the first two months of custody cleared the way to the untrammeled flexing of their political muscle, which is exactly what those rights are supposed to limit. Their treatment of Lindh also cleared the way to more egregious breaches of established constitutional and international norms in the “war on terror”.
In the ten years since his arrest, Lindh has appeared only once publicly, in an iconic photograph of a haggard, corpse-like figure strapped into a container. He is unmentioned by the media. Ashcroft’s vilification endures. While many have forgotten Lindh, those who recall him confuse him with Richard Reid the shoe bomber, or view Lindh as “an enemy fighting our guys,” “a traitor,” “working for al Queda,” “a terrorist,” “a murderer.” Using his Moslem name in this essay was intended to filter out the persisting effects of John Ashcroft’s demagoguery and the distorted memory and prejudice of the public and the media in order to display clearly the Government’s illegality and injustice.
This is where matters stand for John Walker Lindh. If he is not a political prisoner in the traditional sense, he is a prisoner of the politics of a very dark time in our recent history. He has another decade to run on his sentence. The only possibility for an earlier exit is a presidential commutation. And that, sadly for Lindh and also for those who care about repairing the damage of the Bush administration, is unlikely to happen in the current political climate in which rancor and indifference to truth and fairness prevail.
Michael Teitelman lives in New York. He can be reached at: mt258@columbia.edu
Teitelman’s previous storties on John Walker Lindh:
Michael Teitelman: Obama and the Boy in the Metal Box
Michael Teitelman: Obama, Torture and John Walker Lindh