April 19, 2012
In the last few weeks, Guantánamo has been under the spotlight as, for the first time since
Barack Obama took office, the military-commission trial system — the
government’s preferred method for trying terror suspects held in
Guantánamo — has been readied for trying "high-value
detainees," i.e., those who, as well as being held
in Guantánamo, were previously
in "black sites" run by
the CIA, where the use of torture was widespread.
This has always been a problem for the government — under George W. Bush as well as
under Obama — because not only is the use of torture
but information derived through its use
cannot be used in U.S. courts. To get around the first inconvenience, Bush’s lawyers arranged for
torture to be
redefined, and, to overcome the second, the Bush
administration initially brought the military commissions out of retirement
with the intention that the prohibition on torture could be ignored.
When the first incarnation of the commissions was felled by the Supreme Court in June 2006,
and Congress then dutifully brought the trial system back to life a few months
later, the use of information derived through torture was banned, although gray areas were acceptable at the discretion of the
military judges. To get around the ban, the Bush administration tried, at one
in "clean teams" of FBI agents and military interrogators
to try to persuade those who had been tortured to repeat their
tortured confessions voluntarily. Presumably, there was as little concern about
the accuracy of the confessions as there was when the men were first being
tortured, because, as any expert can confirm, torture is not a useful method
for extracting reliable information, but it is very good for producing false
The existence of the "clean teams" was touted by the Bush
administration at the time that Khalid Sheikh Mohammed and other "high-value
charged in connection with their supposed
involvement in the 9/11 attacks, back in February 2008, but no trial ever took
place. Throughout 2008, Mohammed and some of the men accused with
him had their only opportunities, since their capture,
to address the wider
world, when pre-trial hearings
place before George W. Bush left office.
How torture taints the planned trial of Khalid Sheikh Mohammed and the suspected 9/11
Four years later, Obama has finally decided to proceed with the trial of Mohammed and
four others suspected to be his accomplices, although, as the
York Times reported last week, in an editorial
entitled, "The Road We Need Not Have Traveled," there is nothing to celebrate about this
milestone’s finally being reached. More than ten and a half years after the attacks
that spawned the disastrous "war on terror,"
the dark reverberations of the Bush administration’s brutal response
continue to echo throughout America, and also to pervert America’s
reputation around the world.
Although Obama revived the commissions for a second time in the summer of 2009, they
remain a flawed and largely untested forum for trials of huge importance both
domestically and internationally. The Obama administration’s revival
of the commissions faced profound criticism from those who had served in Bush’s
military commissions — from
Lt. Col. Darrel Vandeveld and
Frakt, for example — but the administration pressed on regardless. When the news was announced two weeks
ago that the Pentagon’s prosecutors had "formally charged"
Khalid Sheikh Mohammed and four other men with war crimes "for
planning and carrying out the murder of 2,976 people on Sept. 11, 2001," the New York Times noted that their case
had been referred to "a constitutionally flawed military tribunal"
to be held at Guantánamo, which the editors described as "a global
symbol of human rights abuses."
In seeking to endorse the validity of the forthcoming trial by military commission, Brig. Gen. Mark
Martins, the chief military prosecutor, told a Harvard audience that
the use of military commissions had become "a matter of the rule of
law and of recognizing that at some point justice delayed really is justice
denied." As the New York Times
countered, however, it does not look that way when the compromised path to this
forthcoming trial is analyzed.
Describing the commissions, and their location at Guantánamo as constituting "the
worst way to administer justice" to the men accused of planning and
supporting the 9/11 attacks, the Times first of all took exception to
the delay in bringing the men to trial. It noted that they "could have
been brought to trial years ago, but President Bush decided he could ignore the
Constitution," by ordering them to be held in
secret CIA prisons where they were "subjected to brutal and illegal
Those interrogations, of course, involved torture, but whereas the Times has,
since 9/11, been averse to using the word "torture," an exception was made in the
recent editorial. After explaining that Khalid Sheikh Mohammed "was
times in one month alone," the Times
added, "That torture produced no useful intelligence, according to virtually
all accounts, except those offered by people like former Vice President Dick
Cheney, who was the key architect of the Bush administration’s lawless
detention and interrogation policies."
The above is certainly true, and it is important to have torture identified for what it is,
and also to call out Dick Cheney for
his self-serving lies.
However, Obama is also to blame for the delay in launching
the 9/11 trial. The Times noted that, although
he took office "pledging to close Guantánamo Bay and restore the rule
of law to the treatment of terrorism suspects,"
he had "largely failed."
Looming large in this failure is the fallout from Attorney General
Eric Holder’s announcement in November 2009 that the five men accused of involvement in the 9/11
attacks would be tried in federal court in New York. As the Times noted,
"He was absolutely right, but he failed to prepare local politicians,
who claimed the trial would pose a security threat."
That problem could and should have been have been dealt with in Congress, but
was not tackled adequately.
After Obama effectively capitulated to the critics, putting the trial on hold,
Congress responded by passing legislation that prevented the administration from bringing
any prisoner from Guantánamo to be tried in federal court. Beaten by Congress,
the administration — which, in my opinion, had fatally undermined its
case for federal trials in the first place by announcing the revival of the
military commissions on the same day that the 9/11 trial was announced —
was obliged to announce that the men would
military-commission trials at Guantánamo
instead. The Times described the commissions as "a tribunal
system improved from the kangaroo courts that Mr. Bush created, but still profoundly flawed."
In concluding, the Times noted that at Harvard General Martins "spoke eloquently about the need
for real justice," explaining, "If
we treat the law as a luxury, we sacrifice legitimacy." The Times
stated, "We hope General Martins’s commitment to justice will
persuade a highly skeptical world to accept the
legitimacy of these trials; convicting and executing the prisoners after a
tainted trial would be a disaster."
However, the editors’ final words made clear that this legitimacy seemed unlikely —
as indeed it does. "[After] all that has happened," they wrote,
"even the best-managed trial will not be able to change the fact that
this country has in the last decade accepted too many damaging and unnecessary
changes to its fundamental principles of justice and human rights."
If Eric Holder’s credibility was shot when, after telling Jane Mayer of the
Yorker that history would judge how the
administration handled the trial of the accused 9/11 co-conspirators in federal
court, he was obliged to accept that there would be no federal court trial at
all, what remains of it — where Guantánamo is concerned — is also being tested.
Along with the credibility of Barack Obama, what remains of Holder’s
reputation will be under examination in the trial that will precede that of
Khalid Sheikh Mohammed and his four accused accomplices — that of Abd al-Rahim al-Nashiri.
Chinese "justice" in the case of Abd al-Rahim al-Nashiri
Al-Nashiri was one of five men who, in November 2009, Eric
Holder announced would stay at Guantánamo for trials by military commission,
while Mohammed and the other men would be tried in federal court in New York.
Three of the five
Uthman Muhammed) have been successfully prosecuted —
or, to be more accurate, have helped the administration avoid the inconvenience
of actual trials by accepting plea deals. Another man,
Majid Khan, a supposed "high-value detainee," accepted a plea
deal in February, apparently in exchange for agreeing to testify against Khalid
Sheikh Mohammed. However, the trial of al-Nashiri is
the first that involves the death penalty and, as it is also intended to pave
the way for the 9/11 trial, it needs to appear as convincing and legitimate as
However, whether that is possible is in serious doubt. The case against al-Nashiri,
an uncomfortable pre-trial
hearing in August 2010 and
an uncomfortable arraignment in October
last year, is tainted because of some very obvious torture — he was
with a gun and a power drill in a secret CIA
prison in Thailand and was then moved to a secret prison in Poland, where,
notoriously, he was one of three "high-value detainees" whose
waterboarding has been
by the CIA. In September 2010, he was granted "victim"
status in an ongoing
investigation into Polish complicity in the establishment of a secret CIA
prison at Stare Kiejkuty, near Szymany.
Following the criticism of the planned 9/11 trial in the New York Times, Britain’s
Daily Telegraph — a bastion of conservatism — nevertheless
savaged al-Nashiri’s trial. Peter Foster,
the U.S. editor who "moved to America in January 2012 after three
years based in Beijing,"
an article entitled, "The Guantánamo war
crimes tribunal is worse than a Bush-era horror show: it reminds me of Chinese
Despite the headline, Foster began by noting that General Martins had told his Harvard
audience that U.S. military juries were "often superior to their
civilian counterparts," and that those who
chose them were "mindful" that "diversity and
representativeness on military panels serve the interests of justice."
He added that the convening authority exercised its "independent
opinion" when deciding who was "best qualified for the duty
by reason of age, education, training, experience, length of service, and
That sounded very promising, of course, but Foster immediately followed up by stating,
say with a straight face that al-Nashiri — terrorist
or no — should be expected to trust
to the "mindfulness" and "independent opinion"
of the legal face of his torturers only
points up the levels of double-think required to take these "fair"
trials at face value.
Just take a look at this redacted CIA
inspector-general report (PDF) from 2004 to
get an idea of what was done to al-Nashiri as he was
subjected to "enhanced interrogation
techniques" in CIA detention in Afghanistan, Thailand and Poland after his arrest in 2002.
on his personal experience, he added, "If you want to live in a society where
ends justify the means, where torture and inhumane treatment is inflicted in
the name of the 'greater’ good, then go and live in China and
see what kind of fearful, introverted society that breeds."
He also noted that, although everyone involved — the judge, the
prosecution, and the defense — play their
allocated roles, it "cannot disguise the fundamental lopsidedness" of the commissions, especially as,
in the unlikely event that al-Nashiri is acquitted,
he won’t be released because he can continue to be held as an
"enemy combatant" in a "war on terror" that
still seems to have no end in sight. "How very Chinese," Foster concluded.
He was subjected to mock executions, simulated drowning by water-boarding, scrubbed with stiff brushes until
his skin was raw, threatened with a revving power drill as he stood hooded
and naked, kept in such filthy conditions his CIA interrogators smoked cigars to mask the stench,
held in stress positions for days on end
and hauled up by his arms to the point where his shoulders were about to dislocate.
article, Foster continued his assault on the
commissions. He was reporting from the press conference that followed the pre-trial
hearings, when Richard Kammen, al-Nashiri’s
lead lawyer, and "one of America’s most experienced death
penalty lawyers," launched what Foster
described as "a furious broadside" against the commissions,
declaring, "This will be the only court in the history of America, in
our view, since the founding of the United States, where the Constitution of
the United States didn’t apply."
Reeling off a catalog of complaints, Kammen
"objected strenuously to being asked to submit an outline of defence
arguments without seeing summaries of secret documents used by the prosecutors." The originals are classified, and "cannot
be shown to the defence because of national security concerns," but as
Kammen explained, "It is the equivalent of
me saying to a member of the press, tell us what is in this briefcase and you’d
better get it right, because if you don’t, we will kill you, because
this document may be the critical piece of evidence that the government uses to
try and kill Mr. al-Nashiri."
The judge, Army Col. James Pohl, also rejected a request by Kammen
for support to "translate up to 150,000 pages of 'discovery’
evidence into Arabic," to help al-Nashiri to assist his defense
team. As Kammen explained, "It was
extraordinarily frustrating to us ... that the judge ruled that Mr. al-Nashiri, who speaks very
little English, and reads none, is not entitled as a matter of law to
translations of the documents underpinning the evidence that the government
uses to try and kill him." He added,
"The subtext of all of this seems to be the cost. It seems to be the
attitude of the military that we can kill him and do it cheaply. We think that
is transparently unfair."
It is hard not to agree. As this dark farce, with its echoes of
Chinese "justice," rumbles on, with
al-Nashiri’s case adjourned until July and
his trial unlikely to start until November at the earliest, it is difficult to
see how the trials of Guantánamo’s torture victims can end well for
any of those involved. The lesson must be that black sites and torture must not
be revisited, but how this particular chapter in America’s recent
history can be brought to a satisfactory conclusion is still difficult to
Andy Worthington is the author of The
Guantánamo Files: The Stories of the 774 Detainees in America’s
Illegal Prison (published by Pluto Press) and serves as policy advisor
to the Future of Freedom Foundation. Visit his website at