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CCR Files Al-Zahrani v. Rumsfeld Appeal on Behalf of Detainees’ Families

11:50 am in Military, Uncategorized by Jeff Kaye

Center for Constitutional Rights has filed an appeal for the families of two of the three men who died in mysterious circumstances in June 2006. The U.S. government called it “asymmetrical warfare” by the detainees, who are said to have killed themselves in some belief that would hurt the U.S. government. As bizarre as that theory is, Defense Department investigations found the men committed suicide in a multiple, timed series of three planned suicides.

But as an investigation by Scott Horton at Harper’s Magazine, and one by Seton Hall School of Law’s Center for Policy and Research, demonstrated, the investigation did not hold up to scrutiny. Indeed, the legal case hinges on new eyewitness testimony from four Guantanamo guards who have come forward to tell what they saw that fateful night.

The legal maneuvers throw recent media attempts to discredit the Horton investigation, which won a prestigious magazine journalism prize last month, in a new and more ominous light. (See my story on one such hit piece published in Adweek.)

But the D.C. District Court is citing secrecy issues to keep the new evidence from even being presented. CCR released a press release on Monday discussing the case:

June 13, 2011, Washington and New York – Today, nearly five years to the day after three men died at Guantánamo in June 2006 under still-unexplained circumstances, the Center for Constitutional Rights (CCR) and co-counsel are appealing the dismissal by the District Court for the District of Columbia of a civil lawsuit Al-Zahrani v. Rumsfeld. The military has maintained that the deaths were suicides, having once famously called them “acts of asymmetrical warfare.” In January 2010, new evidence from four soldiers stationed at the base at the time of the deaths came to light, suggesting that the military’s narrative was a cover-up and that the men may have been killed at a black site at Guantanamo.

“My son Yasser was 17 when he was taken to Guantánamo and 21 when he died there,” said Talal Al-Zahrani, father of Yasser Al-Zahrani. “I have waited for five years for meaningful answers to my questions about how my son died, but the U.S. government has never contacted me. Not when my son died, not in response to my questions afterwards and not to this day. And the fact that the government has not only failed to properly investigate his death but is also attempting to block review by the courts is both hard to believe and very painful for my family. We just want the truth and for those responsible to be held accountable.”

Nashwan Al-Salami, whose brother Salah also died at Guantánamo, said, “For five years the U.S. government and courts have blocked my family’s efforts to know the truth about how my brother died. My father died without ever learning what happened to his son, and I continue to hope for real answers and justice.”

The families had presented the new evidence from the soldiers to the district court, requesting that it reconsider its prior dismissal of the case. The court denied the request, holding that even with allegations of an off-site killing, national security “special factors” continue to bar the constitutional claims and that the defendants are further protected by qualified immunity. With respect to the international law claims, the court held that the new evidence was insufficient to challenge the presumption that the defendants were acting within the scope of their authorized duties and were entitled to absolute immunity. Courts have consistently relied on “special factors,” “state secrets” and the “political question” doctrines to dismiss torture and abuse cases brought before them. Not once in the past decade has a court either evaluated the actual facts of such a case or ruled on the legality of the conduct.

CCR attorneys pointed to other documented examples of deaths and killings covered-up by the military in the recent past, including the falsification of records in the death of former football player Pat Tillman and the premeditated murders of Afghan civilians by members of the Army’s Bravo Company.

“The new evidence is not the result of the wild speculations of the families, or their attorneys, or a journalist. It comes from the eye-witness accounts of four decorated soldiers who were compelled to come forward by their consciences, out of a sense of duty, and at great personal and professional risk. In this context, where the only people who know the truth are our clients’ dead sons and individuals within the government, the information these four men have brought forward is critical. It must give these families a chance to reopen their case. It is shameful that this information hasn’t been given greater consideration by the court,” said CCR staff attorney Pardiss Kebriaei, lead counsel in the case.

Today, the Center for Constitutional Rights called on supporters to demand an independent investigation into the deaths and to ask the Obama Justice Department to change course from the prior administration’s policy of attempting to block every torture and abuse case, including Al-Zahrani v. Rumsfeld, from proceeding. In all these cases, the victims and their families seek accountability, justice and answers.

The case, filed on behalf of the families of two of the deceased men, Yasser Al-Zahrani of Saudi Arabia and Salah Ali Abdullah Ahmed Al-Salami of Yemen, charged the government and 24 federal officials with responsibility for the men’s abuse, wrongful detention and ultimate deaths. Early last year, the court granted the defendants’ motion to dismiss the case. Following the dismissal, the families filed a motion for reconsideration on the basis of the evidence from the soldiers, as reported by Scott Horton in Harper’s Magazine in January 2010, arguing that the new facts compelled the court to reopen the case.

The suit was brought by CCR and co-counsel William Goodman of Goodman & Hurwitz, P.C. and Johanna Kalb of the College of Law at Loyola University.

The decision, the complaint, the government briefs and other court documents, as well as video of Mr. Talal Zahrani addressing the U.S. government, courts and people regarding his son’s death can be found on CCR’s legal case page or http://ccrjustice.org/ourcases/current-cases/al-zahrani-v.-rumsfeld.

See also Andy Worthington’s two recent articles covering this news:

Teleconference: Five Years After Disputed “Suicides” at Guantánamo, Father of Dead Man Appeals Court’s Refusal to Consider His Case

Relatives of Disputed Guantánamo Suicides Speak Out As Families Appeal in US Court

In the article on the teleconference, Andy quoted Terek Dergoul, a former detainee who spent two years at Guantanamo and was released in 2004. He shared a cell right next to Yasser al-Zahrani, and spoke about the dead men, each of whom he knew fairly well.

Tarek Dergoul said:

I knew Yasser, Salah, and Mani personally, for a long period of time, and I knew of their deep will to resist being broken by Guantánamo and to live. These were beautiful men, and Yasser and Mani used to sing songs and recite poetry to lift the spirits of the other detained men. They always fought for the rights of all of us to be free from the abuses we were tormented with, and they were repeatedly subjected to harsh treatment because of this. I have never believed these men committed suicide as the government claims.

Important Files Missing in WikiLeaks Guantanamo Release

11:02 am in Military, Torture by Jeff Kaye

File Cabinet for sale $130

File Cabinet for sale $130 by sgroi, on Flickr

Important detainee files are missing in the Guantanamo files released by Wikileaks. There appear to be sixteen missing files, one of which is mislabeled in the database. The mislabeled file concerns a “Detainee Assessment Brief” for Abdurahman Khadr, the brother of Omar Khadr and an admitted “asset” for the CIA, who once described how he was sent to Guantanamo as a fake prisoner to spy.

The other missing files are suspicious, not least because of who these men were, or the stories behind their capture or subsequent fate.

The missing men include Yaser Hamdi (called Himdy Yasser in the database), ISN 009, who was an American citizen labeled an “illegal enemy combatant,” and like U.S. citizen Jose Padilla (who never was at Guantanamo), was sent from Guantanamo to the Navy Brig at Charleston, South Carolina, where he endured terrible isolation and sensory deprivation. His habeas case went all the way to the Supreme Court, which issued a landmark ruling, Hamdi v Rumsfeld, limiting executive rights in regards to incarcerating prisoners without a hearing. Hamdi was later forced to renounce his U.S. citizenship and sent to Saudi Arabia.

Also missing is the file for “high-value” detainee Muhammad Rahim, held by the CIA and only sent to Guantanamo in March 2008, making him a quite late arrival. His ISN, 10030, is not even listed on the Wikileaks database. Another late arrival is also missing. Inayatullah was sent to Guantanamo in August 2007, after having been captured in Afghanistan and, according to press coverage quoting the Defense Department, admitting that he was a leader of al-Qaeda in Zahedan, Iran.
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Guantanamo Teen Was Tortured, Asked To Spy On Other Detainees

8:02 am in Torture by Jeff Kaye

According to information at the Reprieve web site, “Chadian citizen, Mohammed el Gharani was the youngest prisoner in Guantánamo Bay, arrested when he was just 14. In January 2009, a federal judge ordered his release and he was returned to Chad in June 2009.” (Reprieve attorneys represented Mr. el-Gharani.) At the time of his release, a Pentagon spokesman gave the Reuters the U.S. mea culpa regarding the teen’s incarceration — they thought he was 16 years old, and not 14 when he was captured and rendered to Guantánamo.

After his release, Gharani told the Miami Herald that after Barack Obama became president, his treatment did not get any better, including being beaten by a rubber baton and tear-gassed. During the years of his detention, he was subjected to solitary confinement, sleep deprivation, stress positions, and suspension from his wrists at least 30 times.

The U.S. government made nonsensical claims about el Gharani’s supposed “terrorist status.” A Washington Post story by Del Quentin Wilber noted, “The government also accused Gharani of belonging to a London-based al-Qaeda cell in 1998, an accusation that Leon questioned. Gharani was 11 at the time, living with immigrant parents in Saudi Arabia, his attorneys said.” According to the article, U.S. District Judge Richard J. Leon ordered Gharani’s release because of the two informants the U.S. based its case on, one’s credibility was “directly called into question” by government officials themselves, while the other informant’s credibility could not be determined.

[For the record, Farah Stockman, in a July 2006 Boston Globe article, originally broke the story about U.S. charges that Gharani was in London and working for Al Qaeda at age 11.]

In the video below, from an interview with Al Jazeera the month he was released, the former child prisoner — one of at least a dozen minors held over the years at Guantanamo — describes his captivity and torture, including the fact that Guantanamo interrogators tried to get him to spy on his fellow prisoners.
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Sign Petition to Free Guantanamo Prisoner Fayiz al-Kandari

12:21 am in Torture by Jeff Kaye

Supporters of Guantanamo prisoner Fayiz al-Kandari have a petition to Attorney General Eric Holder posted at the PetitionSite.com. It urgently calls upon the United States government “to immediately release Fayiz al-Kandari to the care of the Kuwaiti government.”

Like a number of idealistic Muslims, Fayiz al-Kandari was caught up at a young age by the suffering of Muslims in the war in Bosnia. He became very active in charity work, and this work led him to Afghanistan. Originally from a well-to-do Kuwaiti family, Fayiz was captured in 2001, becoming one of a number of Arabs sold to the Americans in Afghanistan for bounty money. He has been imprisoned for more than eight years.

Andy Worthington describes what happened next:

In Guantánamo, Fayiz al-Kandari’s refusal to accept that “there is no innocent person here” has marked him out as a particularly resistant prisoner — and resistant prisoners are given a particularly hard time. Over the years, he has been subjected to a vast array of “enhanced interrogation techniques,” which, as Lt. Col. Wingard described them, “have included but are not limited to sleep deprivation, physical and verbal assaults, attempts at sexual humiliation through the use of female interrogators, the “frequent flier program,” the prolonged use of stress positions, the use of dogs, the use of loud music and strobe lights, and the use of extreme heat and cold.”

Despite all this, he has not been “broken,” and has been able, unlike Fouad al-Rabiah and numerous other prisoners, to resist making false confessions about his own activities. He has also refused to make false confessions about the activities of other prisoners, despite being offered many opportunities to do so, and despite being told about others who have made false allegations against him.

Al Kandari’s attorney, Major Barry Wingard, has made clear that the evidence against his client is based on far-fetched hearsay evidence. Wingard has been outspoken in his criticism of the Guantanamo military commissions and the use of “enhanced interrogation techniques” and other inhumane types of treatment.

What follows is from the petition website. You can go sign the petition immediately by clicking here.

Free Fayiz al-Kandari to the Care of the Kuwaiti Government Now!

Fayiz al-Kandari, a Kuwaiti citizen, has been a detainee in Guantanamo since 2002 after being captured by Pakistani forces and sold into US custody. Despite over 400 interrogations, suffering through endless hours of torture, including but not limited to beatings, sleep deprivation, threats and forced stress positions, the US government has failed to gather any of the coveted information that this treatment was ostensibly designed to garner. Furthermore, the US government has not produced any evidence against Fayiz al-Kandari aside from hearsay accusations of other Guantanamo prisoners and unidentified Afghanis, evidence which, under any other circumstances, would not be allowed in court.

With this in mind, we urgently call upon the United States government to immediately release Fayiz al-Kandari to the care of the Kuwaiti government. Kuwait has made various requests for the repatriation of Mr. al-Kandari which have been refused by the United States on the basis of concerns with Kuwait’s ability to monitor and rehabilitate previously returned citizens. In response Kuwait has poured enormous resources into vastly improving the monitoring of returned citizens as well as building a multi-million dollar rehabilitation centre. In consideration of these efforts on the part of Kuwait, combined with the length of Mr. al-Kandari’s detention without trial, the questionable nature of the evidence against him and his continued and passionate insistence on his innocence, it is unquestionably incumbent upon the United States Department of Justice, the State Department and the Office of the President to negotiate and arrange with the Kuwaiti government for the return of Fayiz al-Kandari to Kuwait immediately.

For further background information regarding Fayiz al-Kandari, please see these posts by Lt. Col Barry Wingard, the military defense lawyer for Fayiz: Barry Wingard – No Justice Today at Guantanamo – washingtonpost.com http://wapo.st/gsuzX5 and http://www.truth-out.org/nine-years-too-long65253

Propaganda Kabuki in Jury Verdict on Omar Khadr

10:14 pm in Military, Torture by Jeff Kaye

Andy Worthington has posted his take on the Khadr verdict last Sunday, where a 7-person military jury ignored all evidence of torture and sentenced former child soldier Omar Khadr to 40 years in prison. For more on my take on the verdict, see my live-blogging of the event at Firedoglake.

While a plea bargain with the Pentagon allowed Khadr to plead guilty in exchange for an 8-year sentence, making the jury deliberation a fancy piece of propagandistic kabuki, he will spend one more year at Guantanamo before being transferred to Canada (if everything works out, and in my opinion that’s a big “if”). Meanwhile, the 24-year-old prisoner, who has spent all of his adult years at Guantanamo, was sent upon announcement of the sentence, back to solitary confinement, itself a hideous form of sensory and social deprivation torture.

In Andy’s article, Omar Khadr Jury Hammers the Final Nail Into the Coffin of American Justice, he notes that the plea bargain, with its admission of guilt, followed by the jury’s 40 year sentence (even if shaved by the plea bargain to 8 years), was a major propaganda coup for the government. As I noted in my “live-blogging” article the other day,  “This propaganda show is one example of how prisoners are used for exploitation, i.e., psychological warfare purposes. It is no different than the Stalinists using show trials of dissenters, complete with confessions and fake juries, the entire panoply of juridical proceedings, but with none of the content.”

From Andy Worthington’s article:

In other words, then, a former child prisoner, who should have been rehabilitated rather than punished, because the responsibility for his actions lay with his militant father, was convicted on war crimes charges that were invented by Congress and were then reworked by the Obama administration so that the glaring contradiction between real war crimes and invented war crimes could be papered over with a veneer of legitimacy.

Small wonder then that, in the “Statement of Fact” that Khadr signed as part of his plea deal, he was also obliged to waive his right to appeal, in a passage that stated that he “does not have any legal defense to any of the offenses to which he is pleading guilty.”

With such grotesque distortions of justice taking place over the last week, it is easy to forget that the judge, Army Col. Patrick Parrish, had also prevented Khadr’s lawyers from drawing on their client’s well-chronicled reports of his torture and abuse in US custody….

n their closing comments, his lawyers managed to introduce a statement, written by Khadr, referring to the terror he felt when an interrogator, Sgt. Joshua Claus, threatened him with being sent to a US jail where he would be raped by “four big black guys”….

In conclusion, while those who exult in the depths to which America has sunk over the last nine years, since “the gloves came off” following the 9/11 attacks, will rejoice in Khadr’s 40-year sentence (and will complain that his real sentence is only eight years), anyone who retains a shred of decency and respect for the rule of law will be more inclined to accept the words of Dennis Edney, one of Khadr’s long-term Canadian civilian lawyers, who stated after the military jury announced its sentence:

The fact that the trial of a child soldier, Omar Khadr, has ended with a guilty plea in exchange for his eventual release to Canada does not change the fact that fundamental principles of law and due process were long since abandoned in Omar’s case. Politics also played a role. To date, there have been in excess of 1,200 US troops killed in Afghanistan, yet it is only Omar who has been put on trial.

In a comment at the Emptywheel blog the other day, I noted some strange threads hanging from the government’s Khadr story:

The question of how Omar Khadr got to the compound where he would later experience the firefight, and perhaps participate (although his family is clear he was sent only as a translator), is an interesting one because it involves, as the stipulation notes, the appearance of “Sheikh Abu Leith al-Libi, a senior LIFG and al Qaeda military commander.” Somehow, Sheikh al-Libi was to absent himself from this firefight, only to be killed as one of the numerous ostensible number threes of Al Qaeda by CIA airstrike in January 2008.

Al-Libi was a member of the Libyan Islamic Fighting Group (LIFG) which the stipulation document noted, with some strained language, “is a designated terrorist organization and was associated with Al Qaeda at the time of Omar Khadr’s offenses. “Is?” “Was?” In fact, the LIFG was not considered a terrorist organization prior to 9/11, and according to numerous accounts in the British Press (based on a document leak and the testimony of ex-MI5 agent David Shayler, had received British funds and arms in an attempt to overthrow Libyan leader Colonel Moammar al-Qadhafi.

Besides Abu Leith al-Libi, another leader of LIFG was Anas Al-Libi, who worked closely with the dubious Ali Mohamed (who worked closely with portions of the U.S. government and military, as a double or triple agent, no one can be sure). It was a raid on Anas Al-Libi’s house that brought us the famous Manchester document, otherwise known as the Al Qaeda manual, including its interrogation component.

Omar Khadr’s link to Sheikh al-Libi isn’t necessarily sinister or anything more than it seems (apparently, Omar’s father was later furious with al-Libi for endangering his son), but it does point to some strange connections. You can’t probe too closely on any of these affairs and not find something nefarious; in this case, the Judge’s reticence to notice that the man who brought Omar Khadr to the compound in 2002 was only a few years before a paid coup plotter, if not assassin, for the British government. And Omar Khadr showed poor judgment?

—— Khadr’s case is one of the more egregious of countless cases of torture, false imprisonment, kidnapping and murder by the U.S. government. The fact this was done to someone who would not even have been tried in an adult court in most of the United States only adds to the special nature of the Khadr case. It speaks personally to many, and says, this is a vulnerable human being. This person should not be used as a piece of propaganda. His fate dehumanizes all of us.

Judge Denies Guantánamo Prisoner’s Habeas Petition, Ignores Torture in Secret CIA Prisons

8:39 am in Uncategorized by Jeff Kaye

Cross-posted, with permission, from Andy Worthington’s blog

by Andy Worthington

On September 22, in the District Court in Washington D.C., Judge Reggie B. Walton denied the habeas corpus petition of Tawfiq al-Bihani (described in court documents as Toffiq al-Bihani), a Yemeni who was raised in Saudi Arabia, giving the government its 18th victory out of 56 cases decided, with the other 38 having been won by the prisoners.

However, as in the majority of the cases in which the prisoners have lost, there was nothing in the ruling that could be construed as representing the delivery of justice after the eight and a half years that al-Bihani has spent in US custody, as he has been consigned to indefinite detention in Guantánamo, on an apparently legal basis, despite the fact that there is no evidence that he ever took up arms against anyone, or had any contact with anyone involved in preparing, facilitating or supporting acts of international terrorism.

Moreover, in examining his habeas corpus petition, Judge Walton appeared to remain blissfully unaware that, despite being, at most, a lowly foot soldier, al-Bihani was held in a variety of secret CIA prisons in Afghanistan before his transfer to Guantánamo, where he was subjected to torture.

As revealed in the background to al-Bihani’s case, accepted by both al-Bihani and the government, he cut a depressing figure prior to traveling to Afghanistan in the summer of 2000. As Judge Walton explained, “During the time he resided in Saudi Arabia, the petitioner was abusing various drugs, including alcohol, marijuana, hashish, crystal methamphetamine, and depression pills,” Judge Walton also noted, “The petitioner began to ‘increase [his] intake of alcohol and drugs,’ when his fiancee ended their engagement due to her concerns that ‘she would fall out of grace with her father if she married a Yemeni against his wishes.’”

Apparently persuaded to travel to Afghanistan by his brother Mansour, described as “an experienced fighter who fought against the Russians in Chechnya,” and who “had close relationships with senior Chechen fighters and other individuals who were engaged in training men to fight in Chechnya and in other countries,” he traveled to Afghanistan with his brother, where, as Judge Walton concluded, he “received, at a minimum, weapons training” at the al-Farouq training camp, established by the Afghan warlord Abdul Rasul Sayyaf in the early 1990s, but associated with Osama bin Laden in the years before the 9/11 attacks, and also stayed in Afghan guest houses reportedly associated with al-Qaeda.

In authorizing al-Bihani’s ongoing detention, Judge Walton gave weight to al-Bihani’s admission that he “became, and was part of, al-Qaeda at least during the five months period he was training at al-Farouq,” even though he also noted that his training was far from rigorous. “Although he was enrolled at al-Farouq for approximately five months,” Judge Walton explained, “he only ‘received approximately two months of training,’ because he would train for approximately ‘a week or two weeks’ before feigning illness in order to leave and ‘do hashish or tobacco.’” Judge Walton added that al-Bihani “repeated this cycle several times,” and also explained, “Towards the end of his time at al-Farouq, the trainers at the camp informed him that he was ‘not ready physically because [he] keep[s] leaving and going back, — adding that the trainers reportedly “concluded that he was of ‘no use,’ and ‘they kick[ed him] out of the camp.’”

Personally, I find it troubling that an obviously drug-addled, inconsistent and unreliable recruit can nevertheless be regarded as “part of” al-Qaeda, as it tends to render meaningless the supposed threat posed by al-Qaeda if useless recruits can legitimately be held, even when, as with al-Bihani, they had no knowledge of international terrorism, and not even a demonstrable commitment to al-Qaeda’s military activities in Afghanistan.

Judge Walton, however, seemed unconcerned that there appeared to be no basis for concluding that al-Bihani had ever posed a threat to the United States. Proceeding to an explanation of how he was captured, he explained that, in late 2001, having become separated from his brother Mansour (who was “ill” and was transported to Quetta in “a tractor-trailer truck” for those “who appeared sick or injured”), al-Bihani traveled through Pakistan to Iran, “with a group of other men.” Near Zahedan, he was supposed to be reunited with his brother, and with Hamza al-Qa’eity, who ran a guest house in Kabul described by al-Bihani as “one that jihad fighters used as a transition point.” However, as Judge Walton explained, at “the exact time” that al-Qa’eity arrived to pick him up from the house of an Iranian family, where he was staying, the Iranian police — or intelligence services — “descended on the house and apprehended” him — and, presumably, Hamza al-Qa’eity as well.

The hidden story of ten men rendered from Iran to Afghanistan — including Tawfiq al-Bihani

As I mentioned in the introduction to this article, what Judge Walton appeared not to know — or ignored in his ruling — was the fact that, after al-Bihani was subsequently “flown to Afghanistan” and “transferred to United States custody,” he was held in a variety of secret CIA prisons.

This information is readily accessible, because I explained in my book The Guantánamo Files that al-Bihani was one of ten men seized in Iran who were flown to Afghanistan and then handed over to US forces. One of these men, Aminullah Tukhi, an Afghan released from Guantánamo in December 2007, explained that six Arabs, two Afghans, an Uzbek and a Tajik had been delivered to the Americans, and I was able to identify six of them — Tukhi, Tawfiq al-Bihani, Walid al-Qadasi, a Yemeni transferred to the custody of his home government in April 2004, Wassam al-Ourdoni, a Jordanian released in April 2004, Rafiq Alhami, a Tunisian released in Slovakia in January this year, and Hussein Almerfedi, a Yemeni who won his habeas petition in July this year. Unaccounted for are the other four men mentioned by Aminullah Tukhi — an Arab, an Afghan, the Uzbek and the Tajik — although it seems possible that one of the disappeared was Hamza al-Qa’eity.

Confirmation that al-Bihani was one of the men came from an unexpected source. Abu Yahya al-Libi, one of four prisoners who escaped from Bagram in July 2005, described, in a post on an obscure French language website, which has since disappeared from the Internet, 12 prisoners who were held with him in Bagram, one of whom was Tawfiq al-Bihani. He also explained how all the men had passed through a network of secret CIA prisons in Afghanistan, where they had endured “hard torture,” and added, in al-Bihani’s case, that he was captured in Iran at the start of 2002, that he had met him in June 2002 in a prison he identified as “Rissat 2,” and that he was taken to another prison in September 2002, after which he never saw him again, and thought that he may have been transferred to Guantánamo.

Al-Libi also explained that Tawfiq al-Bihani thought that his brother Ghaleb, who had also been in Afghanistan, had been killed, but that the Americans had told him that he had been captured — and it later emerged that this was correct. Ghaleb al-Bihani lost his habeas corpus petition in January 2009, on the basis that he was a cook for Arab forces supporting the Taliban, and also had his appeal denied in January this year, consigning him to the same form of court-approved indefinite detention as his brother.

The torture in secret CIA prisons of three men rendered from Iran to Afghanistan

The accounts of three of the men rendered from Iran to Afghanistan are publicly available, and they are, to be blunt, horrific. Al-Ourdoni, a missionary seized with his wife and new-born child, explained after his release that his American captors “put me in jail under circumstances that I can only recall with dread. I lived under unimaginable conditions that cannot be tolerated in a civilized society.” He said that he was first placed in an underground prison for 77 days, and stated, “this room was so dark that we couldn’t distinguish nights and days. There was no window, and we didn’t see the sun once during the whole time.” He added that he was then moved to “prison number three”, where the food was so bad that his weight dropped substantially, and was then held in Bagram for 40 days before being flown to Guantánamo.

In an interview with a UN rapporteur, Walid al-Qadasi provided the following explanation of his treatment, which, like al-Ourdoni’s account, was included in a major UN report on secret detention earlier this year:

He was held in a prison in Kabul. During US custody, officials cut his clothes with scissors, left him naked and took photos of him before giving him Afghan clothes to wear. They then handcuffed his hands behind his back, blindfolded him and started interrogating him. The apparently Egyptian interrogator, accusing him of belonging to al-Qaeda, threatened him with death. He was put in an underground cell measuring approximately two meters by three meters with very small windows. He shared the cell with ten inmates. They had to sleep in shifts due to lack of space and received food only once a day. He spent three months there without ever leaving the cell. After three months, Walid al-Qadasi was transferred to Bagram, where he was interrogated for one month.

In a lawsuit filed in April 2009, Rafiq Alhami stated that, for a year, he was held in three CIA “dark sites,” where “his presence and his existence were unknown to everyone except his United States detainers,” and where, at various times, he was “stripped naked, threatened with dogs, shackled in painful stress positions for hours, punched, kicked and exposed to extremes of heat and cold.” Moreover, at Guantánamo, he told a military review board that one of the prisons was the “Dark Prison” near Kabul, which I have previously described as “a medieval torture dungeon with the addition of ear-splittingly loud music and noise, which was pumped into the cells 24 hours a day,” based on accounts by prisoners who were held there, including the British resident Binyam Mohamed, who described his time there as “the worst days of his captivity” — worse than the 18 months in Morocco, where the CIA’s proxy torturers regularly sliced his genitals with a razorblade.

Alhami told his review board that he was tortured for three months in the “Dark Prison,” where, he said, “I was threatened. I was left out all night in the cold … I spent two months with no water, no shoes, in darkness and in the cold. There was darkness and loud music for two months. I was not allowed to pray … These things are documented. You have them.”

The torture of Tawfiq al-Bihani

However while Judge Walton may not have come across my book, or the inclusion of this information in the UN report on secret detention earlier this year, I can’t understand how he would not have known about al-Bihani’s treatment from his lawyer, George M. Clarke III, because, in the book The Guantánamo Lawyers: Inside a Prison, Outside the Law, published last year, Clarke reproduced a letter from al-Bihani in which he provided a detailed explanation of what had happened to him after he was delivered to Afghanistan from Iran.

In his letter, al-Bihani explained that he was initially held in a vile Afghan prison in Kabul, where he and the other prisoners from Iran were hidden from Red Cross representatives until one of their fellow prisoners informed them of their existence. His first encounters with US agents — he believes they were from the FBI — took place in this prison, and he described his first interrogation as follows:

I was handcuffed behind and they put a hood on my head so that I could not see anything. When I entered the interrogation room, the American guards pushed me down to the ground in a very savage manner. They started to cut my clothing with scissors. They undressed me completely and I was nude. They made me sit on a chair and it was very cold. I was also afraid and terrorized because the guards were aiming their weapons towards me. The interrogator put his personal gun on my forehead threatening to kill me.

Al-Bihani explained that he stayed in this prison for around ten weeks, and was then moved to another prison where he was held in solitary confinement for “approximately five months and ten days.” He added that the guards were Afghan, that they handed out “very bad treatment,” and that “The interrogation was also very savage.” He was then moved to a third prison, which appears to have been the “Dark Prison,” and en route US soldiers “started to hit me and strangle me, they would put a rope around my neck and I was about to die.” This is his description of the “Dark Prison”:

This was absolutely the worst prison. It was a very dark prison and there was no light, no bed or a carpet, the floor was semi cement. The restraints on my feet were very tight; they put me into a cell and kept me hanging tied to the wall for almost ten days. […]

The irritating music 24 hours a day was very loud and hard banging on the door. When I used to go for interrogations, I was unable to walk because of the restraints on my legs and tightness on my feet.  Would fall down to the ground and scream that I cannot walk. They would pick me up from the ground and I would walk with them while they were hitting me on the way to the interrogation until I would bleed from my feet. When I would fall to the ground, they would drag me while I am on the ground. Then they would bring me back to the cell and sprinkle cold water on me. Sometimes they would put a weapon on my head threatening to kill me using some provocative statements which I cannot mention in this letter.

After ten days, they brought me down from the hanging position and made me sit on the floor. Then they tied my hands upwards for approximately one month so that I could not lie down on the floor for comfort, therefore I was unable to sleep except for quarter of an hour every day.

After one month and ten days, they removed all my restraints, however I was unable to rest or sleep because of extreme hunger and cold and the loud irritating music and the banging on the door. I stayed in this prison for approximately two months and a half and I had no idea whether it is day or night as it was extremely dark and oppressive conditions.

After this, al-Bihani was moved to Bagram, where, he said, “the treatment was very bad there as well,” and was then flown to Guantánamo.

A bleak conclusion

Beyond a rather obvious question raised by the accounts above — did Tawfiq al-Bihani confess that he was “part of” al-Qaeda (when he so obviously wasn’t) because of the torture to which he was subjected in Afghanistan? — what this apparently overlooked torture account most vividly and balefully demonstrates is how effortlessly the torture of al-Bihani has become irrelevant to his case.

The exposure of torture has derailed other habeas petitions challenged by the government — in, for example, the cases of Mohamed Jawad and Fouad al-Rabiah (who were subsequently released), Farhi Saeed bin Mohammed, an Algerian who is still held, and, less successfully, in the cases of Saeed Hatim and Uthman Abdul Rahim Mohammed Uthman (whose successful petitions are being appealed by the government).

However, in Tawfiq al-Bihani’s case it is difficult to escape the conclusion that, even had Judge Walton known, or chosen to pay attention to these reports, it would not have fundamentally altered his conclusion that this failed recruit was sufficiently involved with al-Qaeda to justify his ongoing detention. That, as I concluded above, already demonstrates that the classification process for determining who may be legally detained is far too loose, but when evidence that al-Bihani was tortured in secret prisons is also removed from the picture, the end result is far bleaker.

Somewhere along the line, questions need to be raised not only regarding the justification for continuing to hold insignificant individuals at Guantánamo who never raised arms against anyone and were not involved in terrorism, but also regarding the ease with which detailed information about the torture of prisoners in a series of secret prisons run by the CIA can be so thoroughly ignored that Judge Walton failed to mention it at all.

Congress OK’ed Naji Deportation, Ex-Gitmo Prisoner Charges Drugging, Torture, Coercion to Spy

3:59 pm in Uncategorized by Jeff Kaye

The odyssey of Abdul Aziz Naji has taken many terrible twists and turns since he was seized in Pakistan in May 2002, tortured at Bagram, then sent to Guantanamo, where he was formally cleared of any charges in a review of prisoner status last year. He was forcibly repatriated to Algeria on July 20, despite his fears of being harmed by Islamic forces or the government upon his return. Such forcible repatriation of a prisoner or detainee who fears persecution or worse is a violation of international law. This principle of non-refoulement, or non-return is specifically forbidden in the UN Convention Against Torture and Convention Relating to the Status of Refugees.

The Obama administration was cleared to effect the deportation against the prisoner’s will by no less than the Supreme Court, who rejected a lower court order blocking the action. What hasn’t been reported thus far is the role of Congress, who was mandated to have advance notice of the transfer.

According to the 2010 Homeland Security Appropriations, Interior Appropriations, Consolidated Appropriations, and Defense Appropriations Acts, all of which contain similar language on the subject, no funds are to be appropriated for the transfer of a Guantanamo prisoner to another state unless 15 days prior to release the President submit to Congress, "in classified form," a statement regarding any risks to national security or U.S. citizens, the name of the prisoner and country of release, and "the terms of any agreement with the country or freely associated state that has agreed to accept the detainee." (See PDF link.)

Congress Informed of Plan to Flout the Law

Both the offices of Senator Carl Levin, chairman of the Senate Armed Services Committee, and Senator Dianne Feinstein, chairwoman of the Senate Select Committee on Intelligence, confirmed to me that the 15-day notification did take place, meaning that requisite Congressional committees were informed of the deportation and the fact that it was not taking place on the basis of non-refoulement, and presumably, as the Obama administration has maintained, with "diplomatic assurances" from the Algerian government the prisoners would not be mistreated. The Washington Post said the administration took this to be good coin "because 10 other detainees have been returned to Algeria without incident." But we know that in a number of these cases, the former Guantanamo prisoners were subsequently imprisoned and put on trial. Moreover, numerous human rights organizations have decried reliance on "diplomatic assurances" of safety as not being reliable.

Human Rights Watch described the problem with such "assurances":

Governments that engage in torture routinely deny it and refuse to investigate allegations of torture. A government that is already violating its international obligation not to torture cannot be trusted to abide by a further "assurance" that it will not torture.

Then, too, there is fear that the government cannot protect returnees against being preyed upon by Islamic radical forces. As the U.S. 2006 State Department report on Algeria explained:

The country’s 1992-2002 civil conflict pitted self-proclaimed radical Muslims belonging to the Armed Islamic Group (GIA) and its later offshoot, the GSPC, against moderate Muslims. During the year [2005] radical Islamic extremists issued public threats against all “infidels” in the country, both foreigners and citizens. The country’s terrorist groups generally did not differentiate between religious and political killings.

A number of remaining Algerian prisoners fear return as well. One of them, Farhi Saeed Bin Mohammed, who won his "freedom" via habeas appeal last year, was one of the prisoners whose deportation block was lifted by the Supreme Court at the same time as Naji. To date, he remains at Guantanamo. Andy Worthington describes the fate of the others, including Djamel Ameziane, a Berber who fled Algeria years ago and lived five years in Canada.

The action, or more properly, inaction of Congress in the face of the illegal return (by international standards and U.S. treaty) of Abdul Aziz Naji to Algeria is inexcusable. When asked to make further explanation on policy regarding non-refoulement in general, or in the case of Mr. Naji, both Sen. Levin and Sen. Feinstein’s office declined to comment. We can only be left with the impression that they did not intend to stand in the way of this breaking of international law, and only a widespread outcry has assured, for the moment, that further such deportations have been delayed.

While, after a week’s incarceration, and some confusion about his fate, Naji is now reported to be safe at his family’s home in Batna, about 300 miles east of Algiers, it’s not clear that his safety is assured. Naji had stated that he feared torture, or death, at the hands of either the Algerian government or the Islamic fundamentalist oppositions who have been fighting the government. Over 10,000 have died in this conflict since the early 1990s. As a July 25 New York Times editorial on the Naji deportation noted, U.S. State Department reviews have described the ongoing use of disappearances and the extraction of confessions through torture by the Algerian government.

Andy Worthington has described the case of Mustapha Hamlili, who was arrested with Mr. Naji in Peshawar. He was voluntarily repatriated from Guantanamo to Algeria in July 2008, but then "was subsequently charged with ‘membership in a terrorist organization abroad and using forged travel documents.’" He was only cleared of charges and released last February. Others have faced charges against them over a year after the actual repatriation. Naji may be safe now, but as Worthington warns, "I hope that Abdul Aziz Naji is able to stay in contact with his lawyers, and that he can establish contact with representatives of human rights groups, to ensure that his appearance in the Algerian media is indicative of a new openness on the part of the Algerian government, as is not just a PR stunt, and also, hopefully, to avoid the farcical charges and long-winded trials to which all the other returned Algerians have been subjected."

The Hell that is Guantanamo

Naji’s own incredible tale of his incarceration at Guantanamo, reported in the Algerian newspaper El Khabar, has not received a U.S. audience. British journalist Andy Worthington describes it, though, in an article late last week. Worthington is a fantastic reporter who also recently updated the U.S. rendition story in an article, "New Evidence About Prisoners Held in Secret CIA Prisons in Poland and Romania."

According to the July 28 interview with Naji, prisoners were tortured to give false confessions. Even more incredibly, they were forced "to take some medicines for three months to drive them crazy, loosing [sic] memory and committing suicide." Charges of drugging prisoners have been widespread, but have been difficult to verify. An Inspector General investigation on such drugging was initiated in 2008, but nothing further has been heard, save for an indication earlier this year that the investigation was still underway.

Naji also charges that "some detainees had been promised to be granted political asylum opportunity in exchange of [sic] a ‘spying role’ within the detention camp." Once released, they maintain their spying role, he charged. It is difficult to imagine that the U.S. has not tried to use some prisoners in this way. In fact, the suicide bombing at the CIA’s Forward Operating Base Chapman, Afghanistan, which killed seven CIA officers and a Jordanian intelligence official last December, was undertaken by a Jordanian doctor who was supposedly "turned" after a short period of imprisonment (and likely torture or blackmail) by the Jordanians. One is reminded, too, of the attempts of Britain’s MI5 to turn British resident and U.S. rendition prisoner Binyam Mohamed into an informer, while he was being tortured in a Moroccan prison in September 2002.

We cannot know for sure, but it may have been Naji’s refusal to so turn informant that led him to be considered for forced repatriation by the Obama administration, as in all other cases since January 2009 the government had followed the Bush administration in not undertaking the forced deportation of any Guantanamo prisoner.

Naji’s forced repatriation, his story of drugging and torture and coerced confessions at Guantanamo, and tales of deals with prisoners, swapping political asylum for spying, are all very disturbing. They reveal a side of the government’s actions in what used to be called the "war on terror" that is rarely even mentioned in the press anymore. When any truth about U.S. military or intelligence activity does leak out, as when Wikileaks released tens of thousands of military reports from Afghanistan a few weeks ago, such attempts to unveil government actions have been met by official condemnation and even calls for extrajudicial action against Wikileaks founder Julian Assange, and China-like censorship of the Wikileaks website.

The United States exists today in a state of moral anarchism. The government gives lip service to the rule of law, but repeatedly and consistently shows its disdain for international protocols. As Shahid Buttar of the Bill of Rights Defense Committee pointed out recently, the FBI has been politically spying on Americans for ten years now, and wants the freedom to do even more. BORDC is one of 50 peace, environmental, civil rights, and civil liberties groups seeking "long overdue legislative limits to constrain the FBI" (PDF). Meanwhile, the ACLU and the Center for Constitutional Rights are seeking "a federal court order restraining the Obama administration from killing [the son of Nasser al-Awlaki] without due process of law." The son, Anwar al-Awlaki, a U.S. citizen, is on a government assassination list.

Cases like that of Abdul Aziz Naji put a human face on the actions of the U.S. government. Organizations as diverse as Wikileaks, BORDC, ACLU, CCR and others are fighting to turn this nation back from its headlong plunge into militarism, torture, and assassination, all the deformations that result from substituting imperialism for democracy. But real democracy will not take place until serious, and far-reaching societal and institutional change takes place. This is the challenge of our generation, a challenge we dare not refuse to answer.

A Cry from Guantanamo: Omar Khadr’s Letter to his Attorney

10:24 pm in Uncategorized by Jeff Kaye

Andy Worthington writes:

The Washington Post has just made available a letter from Guantánamo (PDF), written by Omar Khadr, the Canadian citizen who was just 15 years old when he was seized in Afghanistan in July 2002. The letter, to one of Khadr’s Canadian lawyers, Dennis Edney, was written on May 26, and touches on aspects of Khadr’s impending trial by Military Commission — including his constant desire to fire his lawyers, which surfaced in recent pre-trial hearings, and which I discussed in two articles, Defiance in Isolation: The Last Stand of Omar Khadr and Omar Khadr Accepts US Military Lawyer for Forthcoming Trial by Military Commission.

As Michelle Shepard at the Toronto Star reports, Khadr Canadian attorney "[Denis] Edney and advocates for Khadr released the letter Tuesday afternoon to the Toronto Star, Washington Post, Miami Herald and Edmonton Journal." As for the Canadian government’s own despicable role in this affair, Shepard adds:

The Federal Court of Appeal overturned a lower court decision last week that ordered Ottawa to intercede on his behalf in Guantanamo. Canada’s Supreme Court ruled earlier this year that the federal government did breach Khadr’s constitutional rights but stopped short of ordering Prime Minister Stephen Harper to ask for his repatriation, saying the courts couldn’t stray into the realm of dictating foreign policy.

Here’s the full text of the letter. It is heart-breaking to read. For a psychologist such as myself, I see in it the inner struggle of a sensitive man, who was imprisoned as a boy, and has not known adulthood except through the twisted regime of Guantanamo. "I really don’t want to live in a life like this." No doubt Omar is often quite depressed, and trying hard to make sense of what role fate has chosen for him.

Note, too, his referencing of what I believe was the U.S. civil rights struggle — something to identify with. How ironic that Barack Obama, the nation’s first African-American president, is persecuting a former child soldier, using him to validate his own version of the executive’s kangaroo court military commissions, while Omar Khadr himself looks for meaning and hope in the example of the great civil rights struggles of the 1950s and 1960s.

Dear Dennis:

I’m writing to you because sometimes there are things you can’t say, but rather write on paper, and even if I were to tell you you won’t understand. So anyway here are the things:

First: About this whole MC thing we all don’t believe in and know it’s unfair and know Dennis that there must be somebody to sacrifice to really show the world the unfairness, and really it seems that it’s me. Know Dennis that I don’t want that, I want my freedom and life, but I really don’t see it coming from this way. Dennis you always say that I have an obligation to show the world what is going on down here and it seems that we’ve done every thing but the world doesn’t get it, so it might work if the world sees the US sentencing a child to life in prison, it might show the world how unfair and sham this process is, and if the world doesn’t see all this, to what world am I being released to? A world of hate, unjust and discrimination! I really don’t want to live in a life like this. Dennis justice and freedom have a very high cost and value, and history is a good witness to it, not too far ago or far away how many people sacrificed for the civil right law to take affect. Dennis I hate being the head of the spear, but life has put me, and as life have put me in the past in hard position and still is, I just have to deal with it and hope for the best results.

Second: The thought of firing everybody as you know is always on my mind so if one day I stop coming or fire you please respect it and forget about me, I know it is hard for you. Just think about me as a child who died and get along with your life. Of course I am not saying that will or willn’t happen but its on my mind all the time.

Dennis. I’m so sorry to cause you this pain, but consider it one of your sons hard decisions that you don’t like, but you have to deal with, and always know what you mean to me and know that I will always be the same person you’ve known me and will never change, and please don’t be sad and be hopeful and know that there is a very merciful and compassionate creator watching us and looking out for us and taking care of us all, you might not understand these thing, but know by experience they have kept me how and who I am.

With love and my best wishes to you, and the family, and everybody who loves me, and I love them back in Canada, and I leave you with HOPE and I am living on it, so take care.

Your truly son,

Omar

26 May 2010 at 11:37am

P.S. Please keep this letter as private as can be, and as you see appropriate.

Apparently, Mr. Edney thought his client best served by releasing the letter. Worthington comments:

… he obviously felt that it was appropriate to release it, and that Omar would understand.

And given how difficult it is for many Canadians to see Omar as a human being — even with his vile and inappropriate war crimes trial looming — I tend to think he’s right.

One could say the same thing about Americans. Let’s hope a piece of this tragic boy-man’s story gets a wider, more sympathetic hearing.

UN Report Documents Secret Detention Practices by U.S., Other Countries

11:23 pm in Uncategorized by Jeff Kaye

Andy Worthington is posting portions of the United Nations’ “Joint Study on Global Practices in Relation to Secret Detention in the Context of Counter-Terrorism,” a detailed, 186-page report issued last February (PDF). As he explains it, he’s "posting the section of the report that deals with US secret detention policies since the 9/11 attacks [section 4 of the original report], in the hope that it might reach a new audience — and provide useful research opportunities — as an HTML document." Andy adds:

I do, however, urge everyone to read the whole report, because the introduction and conclusions are important, as are the sections establishing the legal approach to secret detention and its historical context, the section detailing current practices in 25 other countries worldwide, and the annexes, which contain government responses to a questionnaire about secret detention, and a number of case studies.

The report concludes:

In many contexts, intelligence agencies operate in a legal vacuum with no law, or no publicly available law, governing their actions….

Secret detention as such may constitute torture or ill-treatment for the direct victims as well as for their families. As many of the interviews and cases included in the present study illustrate, however, the very purpose of secret detention is to facilitate and, ultimately, cover up torture and inhuman and degrading treatment used either to obtain information or to silence people….

The generalized fear of secret detention and its corollaries, such as torture and ill-treatment, tends to effectively result in limiting the exercise of a large number of human rights and fundamental freedoms, including freedom of expression and freedom of association.

Part One of the report is here. Part Two is linked here. I’ll post the link to Part Three when he uploads it. All links are easy to download HTML.

I’d follow Andy’s advice and download the whole thing, especially as the full details for all the footnotes can only be followed in the original report. He says he’s added what he can in square brackets, and also kindly supplied some hyperlinks — a distinct bonus over the report itself!

The report was prepared by "Martin Scheinin, the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Manfred Nowak, the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Shaheen Ali, the vice-chair of the Working Group on arbitrary detention, and Jeremy Sarkin, the chair of the Working Group on enforced or involuntary disappearances." The scope of the report is quite large, including 66 countries, including various European states, China, Canada, Iraq, Morocco, Jordan, Saudi Arabia, Sri Lanka, Israel, Libya, Zimbabwe, Sudan, and many more.

The UN experts’ conclusions were criticized by a number of countries, including some grumbling over the report’s "methodology" from Eileen Donahoe, U.S. ambassador to the Human Rights Council. As Worthington noted in his original story on the report on June 15:

Despite the experts’ hopes, Deutsche Welle noted that a detailed questionnaire that experts sent to the UN’s 192 member countries was only answered by 44 of those countries, and, moreover, “Of these, not one admitted to the existence of secret prisons. The report’s authors depended on independent sources for their investigation and many countries denied them any kind of access to relevant materials or sources.”

The article also noted, “During the debate, China, Russia, Pakistan, Sri Lanka, Syria, Algeria and other African nations denied that any secret detention facilities existed on their territory.” Revisiting the complaints they made when the report was first published, “They accused the report’s authors of sloppy research, of overstepping their mandate and of compiling the report without being commissioned to do so by the UN Human Rights Council"….

Nevertheless, reflecting on the discussion, Martin Scheinin told IPS, “It went better than expected. The report has been very controversial and now there appears to be acknowledgement that the issue is serious enough not to be trivialized by procedural filibustery.”

While the UN experts were dismayed over the U.S. failure to close Guantanamo, as promised by President Obama, they reportedly were somewhat understanding, in that they believed "The [U.S.] government is unable to do anything when the legislature prohibits part of the options available: namely taking a single person from Guantanamo to the mainland United States." Maybe the report’s authors were simply pleased the U.S. had not opposed the report in general. Given the fact that in the past year new secret prisons have been revealed at both Guantanamo and Bagram Air Base, the role of the current administration in relation to secret detention sites and abuse of prisoners in U.S.-run secret prisons, and those of its allies, like Iraq, remains the least reported scandal of the Obama years.

The UN report on secret detentions in the name of "counter-terrorism" was hardly reported by either the U.S. press or the blogosphere. This is not a subject fit for discussion in the era of Obama. While part of the country chokes on a diet of corporate-supplied oil swill, the military-industrial-technical might of the country is engaged in military adventures and empire-building that is bankrupting the nation, and sowing ill-will world-wide.

What the UN report also demonstrates is that the U.S. practice of holding "ghost prisoners" in undocumented and hidden prisons is by no means unusual, that in a world run by corrupt elites and nationalist dictators dreaming revanchist dreams, and running ethnic cleansing enterprises, the practice of secret detention has a wide dissemination. In this we can see the U.S. is only one among many malefactors, if perhaps more responsible (or more cynical) for the breadth of their enterprise, their use of allies utilizing secret prisons for the rendition program, and their long practice of such detentions, going back to the secret backing for Operation Condor, the kidnapping-assassination-secret detention program in South America in the 1970s. (See the article Operation Condor: Deciphering the U.S. Role, by historian J. Patrice McSherry.) Condor is specifically singled out in the UN report as a precursor to the current practice of secret detentions in a number of countries.

According to an IPS article on the report, "The study’s recommendations included an explicit prohibition of secret detention, and the keeping of clear detention records, even at times of armed conflict, as stipulated by the Geneva Convention on the treatment of prisoners of war." Both the report itself and its recommendations should be broadcast widely and well. I thank Andy Worthington for his tireless pursuit of the issue of prisoners held without legal standing, as his long reporting on Guantanamo demonstrates.

Obama’s War Crimes Commission Stands Law on its Head

2:56 pm in Uncategorized by Jeff Kaye

The Administration’s decision to press forward with the first war crimes trial of a child soldier in modern history is unfathomable. That the Administration would then try to ensure a conviction by attempting to rewrite the law to create a new war crime is reprehensible. — David Frakt, Associate Professor of Law at Western State University College of Law and a Lieutenant Colonel in the U.S. Air Force Reserve JAG Corps; former lead defense counsel with the Office of Military Commissions, Guantanamo.

Lt. Col. Frakt, who was the lead defense counsel in the Guantanamo military commissions trials of Mohammed Jawad and Ali al Bahlul, has written an important analysis of the President Obama’s new military commission rules. These rules, released without public comment and only a day before the trial was to start in the case of former child soldier, Omar Khadr, rewrite law in order to prosecute "war crimes," even where none exist.

Frakt does a good job explaining the Orwellian logic of the new military commission rules. Lost within the arcana of who is or is not a "privileged combatant," and thereby appropriate for war crimes charges or trial by military commission, is the insanely twisted logic of the Pentagon, who has strained at gnats, only to bring forth yet another atrocity of justice. As Lt. Col. Frakt explains:

Now, the Department of Defense has once again attempted to revive this discredited interpretation of the offense with a slight twist. In the new Manual the following official comment has been included in explanation of the offense of Murder in Violation of the Law of War: "an accused may be convicted in a military commission. . . if the commission finds that the accused engaged in conduct traditionally triable by military commission… even if such conduct does not violate the international law of war." Astoundingly, according to the Pentagon, a detainee may be convicted of murder in violation of the law of war even if they did not actually violate the law of war.

So you can be found guilty of violation of the laws of war, even if you never violated the laws of war. In other words, according to the prosecutors, we can pretty well bloody do what we want to do. Catch-22, anyone?

News reports describe how Khadr is being forced to wear black-out goggles and earmuffs when being taken to the trial, and after undergoing humiliating searches. This kind of treatment can only be meant to assert power and omnipotence over Khadr, and influence the military and observers at the trial that this 23-year-old man, captured as a 15-year-old, and tortured at Bagram and Guantanamo, is somehow a danger akin to Hannibal Lecter.

Humiliation and fear together constitute psychological torture. Here it is being done in front of the eyes of the world, but people are inured to it, have been psychologically numbed themselves

This whole trial is emblamatic of the false promise and true face of the Obama administration, which has tried to paper over the worst excesses of the previous administrtion with glitzy wallpaper and superglue, but in the end have nothing new to offer but the same old policies of torture, indefinite detention, bogus military commissions (aka kangaroo courts), and secret prisons, not to mention frame-ups, and draconian attacks on justice, as in the recent case of Syed Fahad Hashmi. A U.S. citizen held in solitary confinement for three years in a NYC jail on trumped-up or exaggerated charges of "material support to terrorism", Hashmi finally pleaded out the other day to a 15-year sentence, even though he never committed a terrorist act. Locked up in a hellhole of a prison in isolation for three years, not even allowed to exercise in fresh air, he must have been a desperate broken man to accept this deal. Or perhaps he looked around at America and thought, these people won’t lift a pinky to help me.

From an important story by Andy Worthington, who describes government attempts to influence the judicial process in the Hashmi case:

Before the trial, Theoharis and Fayad Hashmi’s many supporters had pointed out how the prosecution was trying to rig the proceedings, with the government asking for jurors to be anonymous and kept under extra security (a request that was granted by Judge Loretta Preska) in a filing in which the government’s lawyers claimed that “jurors will see in the gallery of the courtroom a significant number of the defendant’s supporters, naturally leading to juror speculation that at least some of these spectators might share the defendant’s violent radical Islamic leanings.”

With this in mind, Fayad Hashmi may have decided that a plea bargain provided his only opportunity to avoid a 70-year prison sentence, but whatever the truth, his treatment over the last four years, and the paucity of the evidence against him, appears only to demonstrate that the overreaction of the Bush years in relation to the perceived terrorist threat is as exaggerated as ever.

For more on the Khadr trial, follow the coverage by Marcy Wheeler, Spencer Ackerman at The Washington Independent, and his own blog, Attackerman. Spencer is in Guantanamo covering the trial.