LAST week, we learned that, only months into the job, the
official in charge of the military courts system at Guantánamo Bay was stepping
down, after judges ruled he had interfered in proceedings. The appointment of an
interim replacement was the sixth change of leadership for the tribunals since
2003.
This is yet another setback for the military commissions, as they tackle two of
their highest-profile cases: the joint trial of the chief planner of the 9/11
attacks, Khalid Shaikh Mohammed, and four alleged co-conspirators, and the trial
of Abd al-Rahim al-Nashiri, accused in the bombing of the American destroyer
Cole.
That’s not all. Besides the revolving door at the convening authority’s office,
six military attorneys have served as chief prosecutor for these courts over the
same period. (I was the third.)
Think about that for a moment. If a professional football team was on its
seventh head coach and sixth quarterback in less than a dozen years, that team
would almost certainly be a loser.
On Dec. 31, 2001, the venerable Washington lawyer Lloyd N. Cutler wrote an
article in The Wall Street Journal titled “Lessons on Tribunals — From 1942.”
Mr. Cutler, a young attorney at the Justice Department in the summer of 1942,
served on the team that prosecuted the eight German saboteurs whom President
Franklin D. Roosevelt ordered tried before a military commission following their
capture on American soil.
While Mr. Cutler noted some shortcomings in the way the military commission had
been conducted in 1942 and advised the Bush administration to avoid repeating
those mistakes at Guantánamo Bay, he was generally optimistic that after a
six-decade respite military commissions could be revived and used in a credible
manner.
“But success will depend on the quality of the judges, the prosecutors and the
defense lawyers, and their ability to show the world that justice is in fact
being done,” he concluded. “In a very real sense, it is the American legal
system, not just Al Qaeda’s leaders, that would be on trial.”
So how have Guantánamo’s tribunals performed, more than 13 years on?
Just six detainees have been both convicted and sentenced for war crimes in
military commissions since President George W. Bush first authorized them in
November 2001.
Charges against three were later dismissed, and five who were convicted were
eventually transferred from Guantánamo. Thus we have a legal system where it is
more advantageous to be found guilty of a war crime than never to be charged at
all and remain imprisoned indefinitely.
About 85 percent of the 779 men ever held at Guantánamo are no longer there.
Most left during the Bush administration. While the number of transfers has been
much smaller under the Obama administration, the pace accelerated in the latter
part of 2014.
Of the 122 men detained, nearly half have been cleared for transfer by unanimous
votes of military, intelligence, law enforcement and diplomatic officials who
determined that the detainees could not be prosecuted, posed no identifiable
threat to the United States and did not need to remain in our custody.
Nevertheless, 56 men cleared to leave still remain, at a cost of about $3
million a year per detainee.
As unfortunate as this waste of resources and damage to America’s
reputation are, the greatest tragedy is the pain inflicted on the friends and
families of the 9/11 and Cole victims. For them, justice has been endlessly
delayed.
Rather than showing “the world that justice is in fact being done,” as Mr.
Cutler wrote, Guantánamo has come to symbolize torture and indefinite detention,
and its court system has been discredited as an opaque and dysfunctional
process. The latest reshuffle of personnel will not alter this impression.
In November 2013, Attorney General Eric H. Holder Jr. admitted that, had the
administration not given up on its plan to try the 9/11 case in federal court,
Mr. Mohammed and his colleagues “would be on death row as we speak.” Mr. Holder
blamed partisan politics for the revival of the military commissions.
In the 16 months since, those observations have received further validation.
While Osama bin Laden’s son-in-law Sulaiman Abu Ghaith and the radical cleric
Mostafa Kamel Mostafa, also known as Abu Hamza al-Masri, were convicted and
sentenced to life in prison by federal courts, the tribunals at Guantánamo
stumbled from one mishap to another.
We need to set politics aside and end this litany of failure. We have competent
and credible federal courts that can provide justice — and finally a measure of
closure for the thousands of our fellow citizens who have had to wait far too
long.
Morris D. Davis, a retired Air Force colonel, was the chief prosecutor of the
military commissions at Guantánamo Bay
from September 2005 until October 2007.
A version of this op-ed appears in print on March 28, 2015,
on page A21 of the
New York edition with the headline: Guantánamo’s Charade of Justice.
May 5, 2012
The New York Times
By MATT FLEGENHEIMER
An
arraignment for the self-described architect of the attacks on Sept. 11, 2001,
and four other detainees descended quickly into a chaotic scene Saturday, as the
defendants refused to answer — or even listen to — the judge’s questions, and
their lawyers sought to cast doubt on whether a fair hearing was possible given
their clients’ treatment at Guantánamo Bay.
The rocky beginning comes as the United States chases dual goals at the restart
of the tribunal: to prosecute, and ultimately execute, the five detainees; and
to demonstrate to the world that the tribunal system is legitimate.
According to news reports on Saturday, the lead defendant, Khalid Shaikh
Mohammed , removed the headphones intended to provide Arabic-English
translations of the judge’s questions. The other defendants did the same,
forcing the judge, Army Col. James L. Pohl , to recess briefly. The hearing
resumed after an interpreter began providing a translation that could be heard
by the whole court.
But news reports depict a day filled with other interruptions. A co-defendant,
Walid bin Attash , was strapped to a chair after refusing to come to court
voluntarily. He was freed from the chair after pledging to behave inside the
courtroom.
At one point, another detainee, Ramzi bin al-Shibh , rose suddenly, then knelt
on the floor of the courtroom to pray. A team of guards in camouflage uniforms
watched closely, but did not intervene.
As the case is restarted, Brig. Gen. Mark S. Martins, the chief prosecutor in
the military commissions system, has sought to rebrand the system by
highlighting changes that Congress made in 2009. These included a higher bar for
“hearsay” evidence and a prohibition against using statements made during cruel
or degrading treatment. Obama administration officials have cited these changes
in arguing that the current tribunals are fair, unlike those in place during the
Bush administration.
But lawyers for the defendants say that the improvements are exaggerated. During
the hearing, Cheryl Bormann , a civilian lawyer for Mr. Attash, told the court
that her client’s treatment at Guantánamo had impeded his ability to take part
in the proceedings. “These men have been mistreated,” Ms. Bormann said,
according to Reuters.
The judge said the defendants’ participation in the tribunal was not a matter of
choice. As he questioned each defendant, he noted for the record, “The accused
refuses to answer,” according to The Associated Press. He ruled that the
defendants would be represented by the lawyers assigned to them.
Several family members of victims came to the naval base to watch the new
arraignment. Others watched via satellite at military bases in the United
States.
Mr. Mohammed wore a white turban. His flowing beard, which appeared to be
graying in previous hearings, was tinged with red, according to news reports.
Tara Henwood-Butzbaugh of Manhattan, whose brother, John Henwood , died in the
attacks, traveled to Guantánamo to watch.
“It’s been a long time coming,” she said before the hearing, “and I do think
it’s in the right place because it was an act of war.”
In 2008, Mr. Mohammed was among the defendants who sent a note to a military
judge at Guantánamo, asking to confess and to plead guilty. Almost a year later,
Attorney General Eric H. Holder Jr. announced that the men would be tried in
civilian court in Manhattan, rather than by a military tribunal. But faced with
a political uproar, led by Republicans and some Democrats, the administration
backpedaled, moving the trial out of New York. No other location was ever
secured, and Mr. Holder announced last year that he had cleared military
prosecutors at Guantánamo Bay to file war-crimes charges against the five
detainees.
April 18,
2012
The New York Times
By DAVID A. SCHULZ
LAST week I
stood before a military judge at Guantánamo Bay to argue that the press and
public had a constitutional right to observe the proceedings of military
commissions. It is an argument I’ve made scores of times on behalf of news
organizations objecting to closed proceedings in criminal and civil trials, but
this was the first time that a military commission — part of a system of
tribunals created in 2006 to try terrorism suspects — agreed to hear such
arguments from the press.
Whether this marks a new openness, or is another in a long line of false starts,
remains to be seen. But the government has a real opportunity to show its
commitment to the rule of law by acknowledging that the public’s First Amendment
rights apply at Guantánamo. The values served by open criminal proceedings —
public acceptance of the verdict, accountability for lawyers and judges, and
democratic oversight of our government institutions — apply there with
particular urgency.
The controversy over public access to the Guantánamo trials has come to a head
in the prosecution of Abd al-Rahim al-Nashiri, accused of masterminding the 2000
attack on the Navy destroyer Cole. Mr. Nashiri’s lawyers want to meet with him
unshackled, asserting that shackling brings back memories of torture and
interferes with his ability to assist in preparing his defense. They proposed to
call both Mr. Nashiri and a psychologist to testify in support of their request.
The government still considers its interrogation techniques “classified
information.” Under this logic, Mr. Nashiri’s own testimony about his own
treatment must be kept secret.
But so much is already known about Mr. Nashiri’s interrogation that a secret
proceeding on its psychological impact is unwarranted. A report, prepared in
2004 by the inspector general for the Central Intelligence Agency and partly
released in 2009, disclosed that Mr. Nashiri had been waterboarded twice,
threatened with use of a handgun and a power drill, and held in stress positions
that could have dislocated his arms from his shoulders. What real threat would
justify preventing the public from hearing his first-person account of this
interrogation?
In May 2010, four journalists were expelled from Guantánamo for reporting the
name of the chief interrogator of a terrorism suspect, Omar Khadr — even though
the interrogator had sought out the press years earlier to tell his story. After
an uproar, the Pentagon’s top lawyer, Jeh C. Johnson, facilitated the
reinstatement of the reporters on their promise that they would abide by rules
governing the commissions, and then set out to revise the rules. Under new rules
announced in September, reporters may now make their objections to secrecy to
the presiding judge in writing. The decision to hear my argument in person by
the top judge in the Nashiri case, Col. James L. Pohl, was an important step
forward.
The motion for access, which was filed by 10 news organizations (including The
New York Times, a client of mine), argues that the First Amendment obliges that
Mr. Nashiri’s testimony be taken in an open courtroom. Under the Constitution,
the fact that a specific piece of information might technically be “classified”
should not be sufficient to close a hearing if the information is already known
to the public (and easily found on the Internet).
On April 11, Colonel Pohl granted Mr. Nashiri’s motion for unshackled visits
without taking testimony, so he sidestepped, for now, a decision on the standard
that will govern requests to close proceedings at the Guantánamo trials. But the
issue will undoubtedly return, and the military’s commitment to openness will
again be tested.
In recent weeks the lead prosecutor for the military commissions, Brig. Gen.
Mark S. Martins, has made the case that military tribunals are uniquely suited
for the prosecution of a narrow class of terrorism suspects and that the use of
these tribunals should be recognized as consistent with commitment to the rule
of law. But the world will never accept the Guantánamo verdicts if significant
testimony is closed for fear of embarrassment over detainee mistreatment.
The thought of a Guantánamo defendant taking the stand to testify about his
treatment, in his own words, may not be appealing for many reasons. But we must
be prepared to lay out all the facts, wherever they lead, if we are to
demonstrate to the world that the verdicts ultimately rendered at Guantánamo are
justifiable, however they turn out.
As Chief Justice Warren E. Burger observed in 1980, on the importance of the
Constitution’s protection of public access to the courts: “People in an open
society do not demand infallibility from their institutions, but it is difficult
for them to accept what they are prohibited from observing.”
In 2008,
the Supreme Court ruled that Guantánamo Bay prisoners who are not American
citizens have the right of habeas corpus, allowing them to challenge the
legality of their detention in federal court and seek release.
The power of the ruling, however, has been eviscerated by the Court of Appeals
for the District of Columbia Circuit. The appellate court’s wrongheaded rulings
and analyses, which have been followed by federal district judges, have reduced
to zero the number of habeas petitions granted in the past year and a half.
The Supreme Court must reject this willful disregard of its decision in
Boumediene v. Bush, and it can do so by reviewing the case of Adnan Farhan Abd
Al Latif, a Yemeni citizen imprisoned at Guantánamo Bay since 2002.
This month, the appeals court declassified an opinion it issued in October that
reversed a Federal District Court decision ordering Mr. Latif’s release. The
appellate court improperly replaced the trial court’s factual findings with its
own factual judgments. It also unfairly placed the burden on Mr. Latif to rebut
the presumption that the government’s main evidence was accurate: the government
should bear the burden of proving by a preponderance of the evidence that his
detention is warranted.
It is undisputed that Mr. Latif was in a car accident in Yemen in 1994 and
sustained head injuries. In 2001, he went to Pakistan to seek free medical
treatment, and eventually traveled to Kabul to find a Yemeni man who had
promised to help him. He was arrested near the border between Pakistan and
Afghanistan and transferred to Guantánamo Bay, where he has been imprisoned
without a trial. The government contends that Mr. Latif was recruited by an Al
Qaeda operative and fought with the Taliban.
The federal trial judge found that the government’s evidence did not
sufficiently support its contention, that incriminating evidence was not
corroborated and that Mr. Latif had a plausible alternative explanation for his
travels.
The appeals court reversed that decision, arguing that the government’s
intelligence report on the Latif case should have been given “a presumption of
regularity” and that unless there is “clear evidence to the contrary,” trial
judges must presume that this kind of report is accurate. But as the strong
dissent by Judge David Tatel explains, there is no reason to make such an
assumption about the report, which was “produced in the fog of war, by a
clandestine method that we know almost nothing about.”
In ruling on 15 habeas cases since mid-2010, the appellate court has made the
standard of review toothless, and its views have affected lower court rulings.
Since July 2010, district judges have denied 10 habeas petitions in Guantánamo
cases and granted none, compared with 22 habeas petitions granted and 15 denied
in the two years before that.
Judge Tatel writes that it is “hard to see what is left of the Supreme Court’s
command” that habeas review in federal court be “meaningful.” The appeals court
has gone off on the wrong track. The justices need to reaffirm the right of
prisoners in Guantánamo to seek justice in federal court and to explain firmly
and clearly what that entails.
WASHINGTON
| Mon Apr 4, 2011
6:14pm EDT
Reuters
By David Alexander and James Vicini
WASHINGTON
(Reuters) - President Barack Obama yielded to political opposition Monday,
agreeing to try the self-professed mastermind of the September 11 attacks in a
military tribunal at Guantanamo and not in a civilian court as he had promised.
Attorney General Eric Holder blamed lawmakers for the policy reversal, saying
their December decision to block funding for prosecuting the 9/11 suspects in a
New York court "tied our hands" and forced the administration to resume military
trials.
His announcement was an embarrassing reversal of the administration's decision
in November 2009 to try September 11 mastermind Khalid Sheikh Mohammed and four
co-conspirators in a court near the site of the World Trade Center attack that
killed nearly 3,000 people.
That decision had been welcomed by civil rights groups but strongly opposed by
many lawmakers -- especially Republicans -- and New Yorkers, who cheered
Holder's announcement that the Obama administration had reversed course.
In moving the case back to the military system, the Justice Department unsealed
a nine-count criminal indictment that detailed how Mohammed trained the 9/11
hijackers to use short-bladed knives by killing sheep and camels.
Another of the five -- Walid bin Attash -- tested air security by carrying a
pocket knife and wandering close to the doors of aircraft cockpits to check for
reactions, said the indictment, which prosecutors asked the court to drop so the
case can be handled by a military commission.
PRISON
STILL HOLDS 172 PEOPLE
The decision to abandon civilian prosecution was an admission that Obama has not
been able to overcome political opposition to his effort to close the prison for
terrorism suspects and enemy combatants at Guantanamo Bay in Cuba, a key 2008
campaign promise. It came on the day he kicked off his campaign for re-election
in 2012.
James Carafano, a foreign policy expert at the conservative Heritage Foundation
think tank, said a military trial for the five men was "the only rational course
of action" and Obama was unlikely to be hurt politically by the decision.
"The (U.S.) public basically just ignores the issue these days. Even overseas,
Europeans who were so critical before of Guantanamo have really gone to sleep on
the issue," he said.
Obama has called the Guantanamo Bay facility, set up by his predecessor
President George W. Bush, a recruiting symbol for anti-American groups and said
allegations of prisoner mistreatment there had tarnished America's reputation.
He promised to close the prison by the end of his first year in office, but that
deadline passed with no action as the administration confronted the hard reality
of finding countries willing to accept custody of the inmates.
The prison still holds 172 people, down from 245 when Obama took office in
January 2009.
DECISION
WELCOMED
The decision to try the five men before military commissions was praised in New
York and Washington. New York City Mayor Michael Bloomberg said the cost of
holding and securing the trials in Manhattan would have been near "a billion
dollars" at a time of tight budgets.
Chuck Schumer, a Democratic senator for New York, called it "the final nail in
the coffin of that wrong-headed idea."
Julie Menin, who spearheaded opposition to the trials in New York, said the
decision was a "victory for lower Manhattan and my community."
But others, like Valerie Lucznikowska, said the use of military commissions was
"just not satisfying to people who want real justice." The 72-year-old New
Yorker, whose nephew died in the World Trade Center attack, said the military
commissions could be viewed by the world as "kangaroo courts."
Holder said he still believed the 9/11 suspects would best be prosecuted in U.S.
civilian courts, despite strong congressional opposition.
Captain John Murphy, the chief prosecutor of the office of military commissions,
said his office would swear charges in the near future against the five suspects
for their alleged roles in the 2001 attacks.
In addition to Mohammed, an al Qaeda leader captured in Pakistan in 2003, and
bin Attash, the accused co-conspirators are Ramzi Binalshibh, Ali Abdul Aziz Ali
and Mustafa Ahmed al Hawsawi.
WASHINGTON
— The Obama administration is preparing to increase the use of military
commissions to prosecute Guantánamo detainees, an acknowledgment that the prison
in Cuba remains open for business after Congress imposed steep new impediments
to closing the facility.
Defense Secretary Robert M. Gates is expected to soon lift an order blocking the
initiation of new cases against detainees, which he imposed on the day of
President Obama’s inauguration. That would clear the way for tribunal officials,
for the first time under the Obama administration, to initiate new charges
against detainees.
Charges would probably then come within weeks against one or more detainees who
have already been designated by the Justice Department for prosecution before a
military commission, including Abd al-Rahim al-Nashiri, a Saudi accused of
planning the 2000 bombing of the American destroyer Cole in Yemen; Ahmed
al-Darbi, a Saudi accused of plotting, in an operation that never came to
fruition, to attack oil tankers in the Straits of Hormuz; and Obaydullah, an
Afghan accused of concealing bombs.
Preparations for the tribunal trials — including the circulation of new draft
regulations for conducting them — were described by several administration
officials familiar with the discussions. A spokeswoman for the military
commissions system declined to comment.
With the political winds now against more civilian prosecutions of Guantánamo
detainees, the plans to press forward with additional commission trials may
foreshadow the fates of many of the more than 30 remaining detainees who have
been designated for eventual prosecution: trials in Cuba for war crimes before a
panel of military officers.
The administration is also preparing an executive order to create a parole
board-like system for periodically reviewing the cases of the nearly 50
detainees who would be held without trial.
Any charging of Mr. Nashiri would be particularly significant because the
official who oversees the commissions, retired Vice Adm. Bruce MacDonald of the
Navy, may allow prosecutors to seek the death penalty against him — which would
set up the first capital trial in the tribunal system. The Cole bombing killed
17 sailors.
Mr. Nashiri’s case would also raise unresolved legal questions about
jurisdiction and rules of evidence in tribunals. And it would attract global
attention because he was previously held in secret Central Intelligence Agency
prisons and is one of three detainees known to have been subjected to the
drowning technique known as waterboarding.
Lt. Cmdr. Stephen Reyes of the Navy, a military lawyer assigned to defend Mr.
Nashiri, declined to comment on any movement in the case. But he noted that two
of Mr. Nashiri’s alleged co-conspirators were indicted in federal civilian court
in 2003, and he made clear that the defense would highlight Mr. Nashiri’s
treatment in C.I.A. custody.
“Nashiri is being prosecuted at the commissions because of the torture issue,”
Mr. Reyes said. “Otherwise he would be indicted in New York along with his
alleged co-conspirators.”
As a candidate, President Obama criticized the Bush administration’s tribunals.
But after taking office, he backed a system in which some cases would tried by
revamped military tribunals while others would go before civilian juries. He
also pressed to close the Guantánamo prison.
But last month, Congress made it much harder to move Guantánamo detainees into
the United States, even for trials in federal civilian courthouses. That
essentially shut the door for now on the administration’s proposal to transfer
inmates to a prison in Illinois and its desire to prosecute some of them in
regular court.
More than a year ago, Attorney General Eric H. Holder Jr. designated Mr.
Nashiri, Mr. Darbi and Mr. Obaydullah for trial in a military commission. But
they have lingered in limbo amid administration indecision about broader
terrorism prosecution policies. The paralysis followed a backlash against Mr.
Holder’s proposal to prosecute suspected conspirators in the Sept. 11 attacks in
a Manhattan federal courthouse.
Three other detainees were also approved for tribunals by Mr. Holder in 2009.
Those cases have progressed — two pleaded guilty last year, and the third is
scheduled for trial at Guantánamo next month. But the charges in those cases
were left over from the Bush administration.
While Mr. Nashiri and Mr. Darbi had also been charged in tribunals in the Bush
administration, their cases were later dropped and must be started over.
The process of charging Mr. Obaydullah had started under the Bush
administration, but it was frozen before completion.
Mr. Nashiri would be the first so-called high-value detainee — a senior
terrorism suspect who was held for a time in secret C.I.A. prisons and subjected
to what the Bush administration called “enhanced interrogation techniques” — to
undergo trial before a tribunal.
Another former such detainee, Ahmed Ghailani, was convicted in federal civilian
court for playing a role in the 1998 Africa embassy bombings.
While Mr. Ghailani faces between 20 years and life in prison, many Republicans
have pointed to his acquittal on 284 related charges — and a judge’s decision to
exclude an important witness because investigators learned about the man during
Mr. Ghailani’s C.I.A. interrogation — to argue that prosecuting terrorism cases
in federal court is too risky.
Mr. Nashiri’s treatment was apparently more extreme than Mr. Ghailani’s. The
C.I.A. later destroyed videotapes of some waterboarding sessions.
Moreover, the C.I.A. inspector general called Mr. Nashiri the “most significant”
case of a detainee who was brutalized in ways that went beyond the Bush
administration’s approved tactics — including being threatened with a power
drill. Last year, Polish prosecutors investigating a now-closed C.I.A. prison
granted Mr. Nashiri “victim status.”
An effort to prosecute Mr. Nashiri could also put a sharp focus on one of the
crucial differences between federal civilian court and military commissions: the
admissibility of hearsay evidence — statements and documents collected outside
of court.
Much of the evidence against Mr. Nashiri consists of witness interviews and
documents gathered by the F.B.I. in Yemen after the bombing. Prosecutors may
call the F.B.I. agents as witnesses to describe what they learned during their
investigation — hearsay that would be admissible under tribunal rules, but not
in federal court.
It remains unclear whether the Supreme Court would uphold a tribunal conviction
that relied on such evidence.
Mr. Nashiri’s case would also test another legal proposition: whether a state of
war existed between the United States and Al Qaeda at the time of the Cole
bombing — before the Sept. 11 terrorist attacks and the authorization by
Congress to use military force against their perpetrators.
The United States initially handled the Cole attack as a peacetime terrorism
crime, but the government now contends that a state of armed conflict had
legally existed since 1996, when Osama bin Laden declared war against the United
States.
The question is important because military commissions for war crimes are
generally understood to have jurisdiction only over acts that took place during
hostilities.
WASHINGTON — A federal appeals court has sided with a Guantánamo prisoner
whose case prompted a major internal argument among Obama administration legal
advisers last year over how broadly to define terrorism suspects who may be
detained without trial.
Belkacem Bensayah, an Algerian who was arrested in Bosnia in 2001 and accused of
helping people who wanted to travel to Afghanistan and join Al Qaeda, cannot be
considered part of the terrorist organization based on the evidence the
government presented against him, a panel of the United States Court of Appeals
for the District of Columbia Circuit has ruled.
“The government presented no direct evidence of actual communication between
Bensayah and any Al Qaeda member, much less evidence suggesting Bensayah
communicated with” anyone else to facilitate travel by an Al Qaeda member, Judge
Douglas H. Ginsburg wrote in a 17-page opinion that was declassified late last
week. Parts of the ruling were censored by the government.
Mark Fleming, a partner at the law firm Wilmer Hale who is representing Mr.
Bensayah, praised the ruling and called on the Obama administration to send his
client back to Bosnia, where his wife and daughters live.
“We’re very happy with the decision of the Court of Appeals recognizing that the
evidence does not justify treating Mr. Bensayah as an enemy combatant,” Mr.
Fleming said. “We hope the United States will now do the right thing and release
Mr. Bensayah so he can begin to rebuild his life after his long captivity.”
A Justice Department spokesman said the Obama administration was reviewing the
ruling and had not yet decided how to respond.
The decision sends Mr. Bensayah’s case for reconsideration by a district judge,
Richard J. Leon, who in late 2008 ruled that Mr. Bensayah could be held
indefinitely and without trial as a wartime prisoner because he had provided
“direct support” to Al Qaeda by trying to facilitate travel. In that same
ruling, Judge Leon ordered the release of five other detainees arrested with Mr.
Bensayah in Bosnia, saying the government had failed to show that they planned
to travel to Afghanistan to fight the United States.
The appeals court’s reversal of Judge Leon’s ruling has added significance
because it followed two policy changes about the case that the Obama
administration made after taking over from the Bush administration.
In September 2009, just before the appeals court heard arguments in the case,
the Obama administration abandoned the argument that Mr. Bensayah could be
detained as a substantial “supporter” of Al Qaeda. Instead, it portrayed him as
functionally “part” of the terrorist organization — a narrower definition.
That switch followed an internal debate between senior State Department and
Pentagon lawyers over whether the Geneva Conventions allow mere supporters of an
enemy force, picked up far from any combat zone, to be treated just like members
of the enemy organization.
The dispute ended without a clear resolution. But as a compromise, the
administration decided not to argue that Mr. Bensayah, at least, could be
detained as a supporter, while holding open the theoretical possibility of
making that argument in other cases.
Still, Judge Ginsburg’s opinion suggested that the appeals court ruling turned
less on the recategorization of Mr. Bensayah’s alleged ties to Al Qaeda than on
skepticism about the basic credibility of the evidence the government presented
against him.
While the appeal was still pending last year, the Justice Department withdrew
its reliance on certain evidence it had presented to Judge Leon, but about which
the government had lost confidence for undisclosed reasons, Judge Ginsburg’s
opinion said.
The nature of that evidence was redacted from the ruling, but it may have
related to accusations that Mr. Bensayah had contact with Abu Zubaydah, another
Guantánamo detainee who was once portrayed as a senior member of Al Qaeda,
although officials have since lowered their estimation of his importance. A 2004
military document about Mr. Bensayah had accused him of having had phone
conversations with Mr. Zubaydah about passports.
The government stuck with other evidence, including a raw intelligence report
whose contents were largely redacted from the opinion, as well as accusations
that Mr. Bensayah had used fraudulent documents and might have lied about his
travel in the early 1990s. But Judge Ginsburg said “the evidence, viewed in
isolation or together, is insufficiently corroborative” of the accusation that
Mr. Bensayah was part of Al Qaeda.
The uncertainty about his travel history, the judge wrote, “at most undermines
Bensayah’s own credibility; no account of his whereabouts ties him to Al Qaeda
or suggests he facilitated anyone’s travel during that time. These ‘questions’
in no way demonstrate that Bensayah had ties to and facilitated travel for Al
Qaeda in 2001.”
WASHINGTON — The 48 Guantánamo Bay detainees whom the Obama administration
has decided to keep holding without trial include several for whom there is no
evidence of involvement in any specific terrorist plot, according to a report
disclosed Friday.
The report was a 32-page summary of the findings of a task force whose members
were drawn from national security agencies across the executive branch. The
group worked throughout 2009 to evaluate each of the 240 detainees held at
Guantánamo Bay, Cuba, when the Obama administration took office and to decide
their fates.
The task force’s general findings have been known since its report was completed
in January. But the report itself was not made public. It was obtained Friday by
The Washington Post, which posted the report on its Web site.
Of the 240 detainees, it recommended transferring 126 home or to a third
country, prosecuting 36 for crimes, and holding 48 without trial under the laws
of war because they are believed to be members of an enemy force. Thirty were
Yemenis who have been deemed safe to release as individuals but will continue to
be held until security conditions in Yemen stabilize.
About 180 detainees remain at the base today. Of that group, the 48 whom the
administration has designated for continued indefinite detention without trial
have attracted the greatest controversy, in part because many Democrats sharply
criticized that policy when the Bush administration created it after the
terrorist attacks of Sept. 11, 2001.
The report said most such detainees fell into at least one of four categories:
they had had a significant organizational role in Al Qaeda or the Taliban;
“advanced training or experience” in matters like explosives; they had
“expressly stated or otherwise exhibited an intent to reengage in extremist
activity upon release;” or they had a “history of engaging in extremist
activities or particularly strong ties (either directly or through family
members) to extremist organizations.”
The report also cited two primary reasons why the 48 detainees could not be
prosecuted. First, it said, the vast majority were captured in combat zones when
the focus was warfare, not court cases. While the intelligence against them was
deemed credible, it said, evidence was not collected or preserved about them in
a form that would be deemed admissible in court or that could prove their guilt
beyond a reasonable doubt.
“One common problem is that for many of the detainees, there are no witnesses
who are available to testify in any proceeding against them,” it said.
Legal limitations also posed a problem for prosecutions, the report said. For
example, the task force found no evidence that some detainees had “participated
in a specific terrorist plot” or that they had acted to support Al Qaeda after
October 2001, when laws criminalizing the general provision of material support
to a terrorist group were extended to apply to foreigners overseas. Furthermore,
it noted, the statute of limitations for providing material support to
terrorists expires after eight years.
The report’s disclosure comes as the Senate Armed Services Committee said it had
voted to bar the construction of a military detention facility in Thomson, Ill.,
in a further blow to the Obama administration’s fading hopes to shutter the
Guantánamo prison.
If the Obama administration wants to demonstrate that it is practical and
just to try some terrorism suspects in military tribunals instead of federal
courts, it is off to a very poor start.
Justice Department and Pentagon officials have chosen a troubling case for the
first trial under the revisions that were adopted to the Military Commissions
Act in 2009 — a Toronto-born Guantánamo Bay detainee named Omar Khadr. Mr.
Khadr, 23, has been in detention since he was 15, when he allegedly threw a hand
grenade during a firefight in Afghanistan that fatally wounded Sgt. First Class
Christopher Speer.
Mr. Khadr was not a mere bystander. He was indoctrinated into armed conflict by
his father, a member of Osama bin Laden’s circle who was killed by Pakistani
forces in 2003. But if his trial goes forward this summer as scheduled, he will
be the first person in decades to be tried by a Western nation for war crimes
allegedly committed as a child.
That has drawn justified criticism from United Nations officials and civil
liberties and human rights groups. The conditions of Mr. Khadr’s imprisonment
have been in clear violation of the Geneva Conventions and international accords
on the treatment of children.
During a recent pretrial hearing at Guantánamo, it emerged that his initial
questioning at Afghanistan’s Bagram prison occurred while he was sedated for
pain and shackled to a stretcher following his hospitalization for severe wounds
suffered in the fighting.
His first interrogator, identified at the hearing only as Interrogator One, was
an Army sergeant later convicted of detainee abuse in another case. He used
threats of rape and death to frighten the teenaged Omar Khadr into talking.
Another witness recalled seeing him hooded and handcuffed to his cell with his
arms held painfully above his shoulders. When the hood was removed, he
testified, he could see that the teenager was crying.
In January, the Supreme Court of Canada condemned the questioning of Mr. Khadr
by a Canadian official who then shared the results with American prosecutors.
The ruling cited Mr. Khadr’s lack of access to counsel and his inclusion in the
military’s notorious “frequent flier” program, which used sleep deprivation to
elicit statements about serious criminal charges.
A ruling from the military judge on the admissibility of Mr. Khadr’s statements
is not expected for several weeks. But there’s already a bad lingering taste
from the hearing, which began just hours after Defense Secretary Robert Gates
formally approved a new set of rules for the tribunals and before Mr. Khadr’s
lawyers or the judge had a chance to review them. The rules are an improvement
over those that governed the Bush commissions, but they have flaws, including
the use of hearsay.
During the hearing, the Pentagon barred four reporters from covering any
military commission because they printed the name of Interrogator One, even
though it has been public for years and is readily available on the Internet.
The administration needs to restore the reporters’ credentials.
It also needs to press forward with negotiations on a plea deal. The evidence
that Mr. Khadr threw the deadly hand grenade is not clear-cut. Even if it were,
it would be impossible to overlook his abuse in custody, and status as a
juvenile, which deprived him of mature judgment.
After Mr. Khadr’s eight-year ordeal, it would be no disrespect to Sergeant Speer
to return Mr. Khadr to his home country under terms designed to protect public
safety and strive for his rehabilitation.
WASHINGTON — A federal judge on Thursday ordered that one of the youngest
detainees at Guantánamo Bay, Cuba, be released by late August in a case that
drew wide attention because of rulings that he had been tortured by Afghan
officials and abused in American custody.
“Enough has been imposed on this young man to date,” the judge, Ellen Segal
Huvelle, said in a courtroom crowded with people drawn by what had become a
confrontation between the judge and the Obama administration.
But it was not clear Thursday whether Judge Huvelle’s order will mean freedom
for the detainee, Mohammed Jawad, who has long faced American charges that, as a
teenager, he threw a hand grenade in Kabul in 2002 that injured two American
servicemen and their Afghan interpreter.
The ruling on Thursday came after a concession by the government last week that
it could no longer defend Mr. Jawad’s military detention in the habeas corpus
case before Judge Huvelle. She had declared that the administration’s case for
continuing his detention after nearly seven years was “riddled with holes” and
that virtually all of the government’s evidence came from confessions he made
after being threatened with death.
Justice Department officials said they were studying whether to file civilian
criminal charges against Mr. Jawad. If they do, officials say, he could be
transferred to the United States to face charges, instead of being sent to
Afghanistan, where his lawyers say he would be released to his mother.
“It is a very real possibility,” a Justice Department official said in an
interview, “but whether we can compile enough evidence to support a case is a
question we don’t yet know the answer to.” The official spoke on condition of
anonymity because the department does not discuss investigations.
Mr. Jawad’s military lawyer, Maj. David J. R. Frakt, said he would file court
challenges to any effort by the administration to move his client to the United
States to face charges. But Major Frakt conceded that the Aug. 21 deadline Judge
Huvelle gave the government to send Mr. Jawad to Afghanistan also gave
prosecutors time to work on a grand jury investigation.
“We have won the battle,” he said outside the federal courthouse here. “Have we
won the war? Perhaps it remains to be seen.”
The Obama administration had asked for the 22 days to comply with a recently
passed provision requiring that Congress be given 15-days notice of any detainee
transfer. The administration said it needed an additional week to prepare the
notice.
Mr. Jawad’s age is unknown, but his lawyers say he was 14 or 15 at the time of
the grenade attack. Military prosecutors have been pursuing war crimes charges
against Mr. Jawad in the military commission system at Guantánamo. But their
case foundered after a military judge ruled last year that it was largely based
on confessions Mr. Jawad gave after being tortured.
Justice Department lawyers told Judge Huvelle they would no longer use those
statements. But they said they had additional evidence, including witnesses to
the attack.
From the bench on Thursday, Judge Huvelle criticized the government for what she
described as inattention to the case and a “continuing pattern” of delay both by
the Bush and Obama administrations. She said any prosecution would face
difficulties, including what she said was a possible denial of Mr. Jawad’s right
to a speedy trial and evidence that his treatment at Guantánamo was harsher than
any juvenile defendant would face in the United States.
“I hope,” Judge Huvelle said, “the government will succeed in getting him sent
back home.”
