Remember 10 months ago, when the Democrats, following success in the midterm elections, briefly held out the promise that they had teeth, and Donald Rumsfeld, the former strongman who had become a laughingstock, resigned his post as defense secretary? There were, at that time, high hopes that his successor, former CIA director Robert Gates, would take a less bullish approach to Guantánamo than that of the lonely Bush and the dominant Cheney cabal. Those with a surfeit of optimism even dared to think that, having tackled the tip of the iceberg, the country might then be ready to probe the dark and largely unexplored mass beneath: the network of secret and semi-secret prisons run or maintained by the CIA and its proxies, which had begun to attract ferocious opposition not just from human-rights groups, but also from the United Nations and the Council of Europe.
Soon after taking office, Gates declared that he wished to close Guantánamo and conduct trials on the U.S. mainland, explaining that, “because of things that happened earlier at Guantánamo, there is a taint about it,” and adding that he felt that “no matter how transparent, no matter how open the trials, if they took place in Guantánamo, in the international community they would lack credibility.” Despite support from Condoleezza Rice, however, who had inherited the State Department’s profound opposition to Guantánamo from the intel-cuckolded Colin Powell, the malignant swamp of Cheneydom was not to be drained. In no uncertain terms, the vice president and his little puppet boy, Attorney General Alberto Gonzales, shut down all discussion of Gates’ plan.
As the months wore on, Gates’ pragmatic opposition to Guantánamo was slowly but surely undermined, as five new “terror suspects” arrived at Guantánamo mostly announced without fanfare, separated by sufficient time to avoid undue attention, and hidden behind the coattails of other, more distracting events.
The first to arrive was Mohammed Abdul Malik, an apparently “dangerous terror suspect.” According to the DoD, Malik had “admitted to participation in the 2002 Paradise Hotel attack in Mombasa, Kenya, in which an explosive-filled SUV was crashed into the hotel lobby, killing 13 and injuring 80,” and had also “admitted to involvement in the attempted shootdown of an Israeli Boeing 757 civilian airliner carrying 271 passengers, near Mombasa.” Malik was flown in from Kenya two weeks after 9/11 architect Khalid Sheikh Mohammed’s spectacular “confession” was still fresh, and at almost exactly the same time that Guantanamo’s remaining Australian, David Hicks, was prevailed upon to accept a plea bargain before his trial by military commission at Guantánamo. This should have been a humiliation for the administration, as a man it had long touted as one of the “worst of the worst” (of the worst) one of just a handful of detainees considered eligible for the administration’s new wave of “war crimes” trials was sent home with a smacked wrist to serve just nine months in prison in Australia after confessing that he had “provided material support for terrorism.”
Remarkably, however, the administration rode through the criticism primarily, that the military commissions were a total farce, and that Hicks was so desperate to go home that he agreed to drop all his legitimate and well-documented claims that he was abused by the U.S. military in Afghanistan, on U.S. warships, and in Guantánamo and emerged relatively unscathed. In addition, the administration managed to smuggle a relative nobody into Guantánamo from Kenya without having to reveal anything of the new front in the “War on Terror” that it had embarked upon in the Horn of Africa. However malign, this was quite an achievement. Almost unnoticed, the waning world of “disappearances” and secret prisons was revived with a vengeance in Africa, conducted, this time, by FBI agents instead of the tarnished operatives of the CIA, but with the innovative addition of kidnapping dozens of women and children as well as their allegedly militant menfolk.
A month later, the administration followed this up with a more audacious delivery: Abdul Hadi al-Iraqi, a suspect who was sold more aggressively to the public, as he ticked a lot of boxes that the administration wished to have connected in voters’ minds. Al-Iraqi was described in a DoD press release as “a high-level member of al-Qaeda” and “one of al-Qaeda’s highest-ranking and experienced senior operatives.” The DoD added that, at the time of his detention, he was “associated with leaders of extremist groups allied with al-Qaeda in Afghanistan and Pakistan, including the Taliban,” and that he had “worked directly with the Taliban to determine responsibility and lines of communication between Taliban and al-Qaeda leaders in Afghanistan, specifically with regard to the targeting of U.S. forces.”
In a separate “high-value” detainee profile similar to those issued after 14 other “high-value” detainees, including Khalid Sheikh Mohammed and Abu Zubaydah, were transferred to Guantánamo in September 2006 further details were provided about al-Iraqi’s activities and connections, including claims that he was “known and trusted by [Osama] bin Laden and Ayman al-Zawahiri” and “at one point was al-Zawahiri’s caretaker.” He was also said to have worked “for a long time” as an instructor in an al-Qaeda training camp in Afghanistan and to have been a member of al-Qaeda’s ruling Shura Council and its Military Committee. Speaking after the announcement of his transfer was made, Pentagon spokesman Bryan Whitman added a few additional morsels of information, explaining that he had been transferred to DoD custody from the custody of the CIA, although he “would not say where or when al-Iraqi was captured or by whom.” Expanding on the CIA custody angle, USA Today reported that a U.S. intelligence official, “speaking on condition of anonymity because of the sensitivity of the matter,” explained that al-Iraqi had actually been captured “late last year in an operation that involved many people in more than one country.” This admission confirmed, therefore, that al-Iraqi had been secretly held in U.S. custody for at least four months before his transfer to Guantánamo. It also suggested that the time of his transfer was chosen for its political impact.
The third arrival came in early June. Abdullahi Sudi Arale, a Somalian, received little fanfare, perhaps because the spotlight on terror had been dimmed following the death, the week before, of a fourth detainee at Guantánamo, a Saudi and long-term hunger striker named Abdul Rahman al-Amri. Possibly, however, his arrival was little trumpeted because it involved the deliberately underreported “War on al-Qaeda” in the Horn of Africa, and because the administration had very little information to offer about him. In almost questioning terms, Arale was described as a “suspected” member of “the al-Qaeda terrorist network in East Africa” who served as “a courier between East Africa al-Qaeda (EAAQ) and al-Qaeda in Pakistan.” In a press release, the DoD added that, after returning to Somalia from Pakistan in September 2006, he “held a leadership role in the EAAQ-affiliated Somali Council of Islamic Courts (CIC).” It also noted, with distressing vagueness, that there was “significant information available” to indicate that Arale had been “assisting various EAAQ-affiliated extremists in acquiring weapons and explosives,” that he had “facilitated terrorist travel by providing false documents for AQ and EAAQ-affiliates and foreign fighters traveling into Somalia,” and that he had “played a significant role in the reemergence of the CIC in Mogadishu.” Unmentioned, of course, was the subtext of the situation in Somalia: the role of the CIC in returning some semblance of order to one of the world’s least-governed countries, and the U.S. government’s use of Ethiopia as a proxy army in yet another secret, dirty war.
The fourth new Guantánamo detainee arrived a fortnight later. Buoyed, perhaps, by midsummer weather and secure that the media was not paying much attention to who was arriving in Guantánamo, and were, instead, agitating about the departure from Guantánamo of two cleared detainees who were sent to Tunisia where they faced the risk of torture, the DoD touted Haroon al-Afghani as a “dangerous terror suspect” who was “known to be associated with high-level militants in Afghanistan” and had apparently “admitted to serving as a courier for al-Qaeda Senior Leadership (AQSL).” The Pentagon also reported that there was “significant information available” that he was a senior commander of Hezb-e-Islami Gulbuddin (HIG), an anti-U.S. militia led by renegade Afghan warlord Gulbuddin Hekmatyar. Despite never having disguised his loathing of the United States, Hekmatyar was, ironically, one of the major recipients of billions of dollars of American money to fight the Soviet Union in the 1980s, which was channeled to him through his supporters in Pakistan’s intelligence services, the ISI. According to the DoD, al-Afghani “commanded multiple HIG terrorist cells that conducted improvised explosive device (IED) attacks in Nangarhar Province” (centered on Jalalabad) and was “assessed to have had regular contact with senior AQ [al-Qaeda] and HIG leadership.”
Haroon al-Afghani arrived with less aplomb than al-Iraqi, presumably because, despite the links between al-Qaeda and Iraq that the administration had so mercilessly pumped in the latter’s case, some churlish commentators had refused to ignore the implied existence of secret prisons that were not supposed to exist anymore. They had attempted to rake up issues that the administration considered dead and buried or at least locked up far away in grave-like tombs in unnamed foreign countries. The misunderstanding was based on an announcement by the president, in September 2006 after KSM and the 13 other “high-value” suspects arrived at Guantánamo that the secret prison program, which had not entirely escaped the notice of the Supreme Court in June, had now been closed down.
Speaking to the world from the White House, the president claimed, “The current transfers mean that there are now no terrorists in the CIA [secret prison] program.” This appeared to be a clear-cut confession that the program had been closed down, but it was followed by a warning that, “as more high-ranking terrorists are captured, the need to obtain intelligence from them will remain critical and having a CIA program for questioning terrorists will continue to be crucial to getting lifesaving information.” Just seven months after Bush’s speech, the case of al-Iraqi revealed that, at best, the CIA’s secret prisons had only remained empty for a couple of months.
And finally for now, at least on Wednesday another new boy, an Afghan identified only as Inayatullah, flew into Guantánamo from Afghanistan. He had been captured, according to the DoD’s press release, “as a result of ongoing DoD operations in the struggle against violent extremists in Afghanistan.” The DoD claimed that Inayatullah had “admitted that he was the al-Qaeda Emir of Zahedan, Iran, and planned and directed al-Qaeda terrorist operations,” adding that he “collaborated with numerous al-Qaeda senior leaders, to include Abu Ubaydah al-Masri and Azzam, executing their instructions and personally supporting global terrorist efforts.” (Al-Masri and Azzam were not identified in the DoD’s press release, but the former is an Egyptian-born al-Qaeda commander in Afghanistan’s Kunar province, and the latter is possibly the American Adam Gadahn, known as Azzam the American, who has produced al-Qaeda propaganda with Ayman al-Zawahiri.)
In unwieldy prose, the DoD noted, “Inayatullah attests to facilitating the movement of foreign fighters, significantly contributing to transnational terrorism across multiple borders,” claiming that he “met with local operatives, developed travel routes, and coordinated documentation, accommodation, and vehicles for smuggling unlawful combatants throughout countries including Afghanistan, Iran, Pakistan, and Iraq.” Like the other new arrivals, he will at some unspecified time in the future be subjected to a Combatant Status Review Tribunal, which will find that he has been correctly designated as an “enemy combatant,” and the administration will then, presumably, push all five men forward for trial by military commission.
These new deliveries have done little for the reputation of Robert Gates, confirming that the White House has as much disdain for the new-look DoD as it does for the State Department. The arrival of these men at Guantánamo also demonstrates that, although the administration is willing to depopulate Guantánamo by sending home the husks of innocent men and Taliban foot soldiers who have been ruthlessly exploited for “intelligence” for over five years, it is still committed to pressing ahead with the military commissions. Sidestepped by David Hicks in March, the commissions remain as toxic and unreliable to those concerned with the rule of law as the tribunals at Guantánamo, designed to conceal all evidence of torture on the part of the U.S. authorities, obscure secret evidence from the defense lawyers, and secure preordained guilty verdicts.
To recap briefly, the entire military commission process began in November 2001, when, with the utmost stealth, and with no oversight whatsoever, Dick Cheney arranged for the president to grant himself the power to detain anyone at will and try them in kangaroo courts of his own devising. After starting and stalling several times in the intervening years, the commissions were ignominiously extinguished by the Supreme Court in June 2006, which ruled decisively that they were illegal under U.S. law and the Geneva Conventions. Following this decision, the administration responded to a sliver of hope offered by one of the Supreme Court judges Justice Stephen Breyer, who pointed out that “Nothing prevents the president from returning to Congress to seek the authority he believes necessary” by doing just that, drafting new legislation, which was almost exactly the same as the old legislation, on the back of a cigarette packet and pushing the Military Commissions Act (MCA) through a comatose Congress last fall.
Resuscitated, zombie-like, through this complete failure on the part of Congress to challenge the White House’s lust for unbridled power, the commissions spluttered unchallenged through the Hicks farrago. But they failed to blaze back to life in June, when Omar Khadr, a child soldier, and Salim Hamdan, one of Osama bin Laden’s chauffeurs, were wheeled out to face the “war crimes” charges evaded by Hicks. The new military commissions were regarded by those still in touch with the rule of law primarily the detainees’ own government-appointed military lawyers as being as ad hoc and monstrously illegal as the system thrown out by the Supreme Court. The lawyers were looking forward to a fight, relishing the opportunity to challenge the spurious basis of the “war crimes” charges and prevent the administration from destroying a centuries-old judicial system that was just and efficient only to replace it with show trials that would have done Stalin proud.
Astonishingly, the revived system collapsed on its first day, when, in independent decisions, both of the government-appointed military judges, Army Col. Peter Brownback and Navy Capt. Keith Allred, shut down the proceedings, pointing out, with a lawyer’s eye for detail, that the MCA mandated them to try “illegal enemy combatants,” whereas the two men before them and everyone else in Guantánamo, for that matter had only been determined to be “enemy combatants” in the tribunals that had made them eligible for trial in the first place. Blustering impotently about semantics (and ignoring its own semantic crimes over the preceding five years), the administration responded by wailing that it would appeal the decision in the appeals court for the military commissions. Yet the court in question like so much of the architecture of the commissions themselves had not yet been established.
This oversight was finally remedied two weeks ago, and the court is due to make a decision in the coming weeks. But the military lawyers representing Khadr and Hamdan have refused to be cowed, and one of them, Lt. Cmdr. William Kuebler, explicitly told journalists after the hearing, “This is a lawless process,” and stressed that the hoped-for demolition of the rigged system was “about the credibility of the United States and the perception around the world of our commitment to the rule of law.”
The future of the entire system of military commissions hangs in the balance and schools of lawyers are already circling the Supreme Court in the hope that the wavering justices will soon deliver a crushing verdict on the whole Guantánamo operation. This does not seem to be the right time to brag, as the administration did last week, that it was building a vast tent city, on an unused runway at Guantánamo, to hold “war crimes” trials beginning in March 2008, with as many as six trials taking place simultaneously, and to follow this up by flying yet another detainee into Guantánamo. But this is, perhaps, no longer the real world, and is, instead, just the latest and most outrageous manifestation of the blinkered, belligerent, bellicose Bush-and-Cheney World, an ever shrinking war bunker in which the will alone matters, and it has been entirely forgotten that one man’s will power may be another man’s psychotic delusions.