Guantánamo Trials: Where Are The Terrorists?

As pre-trial hearings take place in the US prison complex at Guantánamo Bay, Cuba, Andy Worthington, author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison, looks at the stories of the three defendants whose cases are being heard this week and next – two alleged "child soldiers," and a driver for Osama bin Laden – and wonders what happened to the real terrorists.

According to a report by Jane Sutton of Reuters, the US military has spent $12 million on a mobile court complex – including prefabricated holding cells shipped to the prison by barge and cargo plane – which is intended to be used for the trial by Military Commission of up to 80 detainees, beginning in May. As Sutton describes it, the new court building, which "looks like a khaki-colored metal warehouse on the outside and a traditional courtroom inside," has "enough room to simultaneously try up to six prisoners, lined up on faux-leather chairs at cherry-veneer tables."

Known as Camp Justice – a name that will, no doubt, be pilloried by the many critics of the Commissions, who claim that justice is the last thing that the trials will provide – reports that the complex was built by the Indiana National Guard, who "marked the entrance sign with the date September 11, 2007." In what is described as "an obvious 9/11 reference," Colonel Wendy Kelly, Director of Operations for the Military Commissions, explained, "It’s ironic, but that’s when they started construction."

What is perhaps more ironic is that, despite the 9/11 references, and the fact that Guantánamo was, from its inception over six years ago, intended to hold and try those responsible for the 9/11 attacks, none of the defendants is accused of direct involvement in the events of that terrible day.

Omar Khadr

The first defendant to face pre-trial hearings was Omar Khadr, who is accused of murder in violation of the rules of war, attempted murder in violation of the rules of war, conspiracy, providing material support for terrorism, and spying. Khadr, whose father was an alleged financier for al-Qaeda, is at least tangentially connected to Osama bin Laden and the events of 9/11, having spent some of his childhood in a compound in Afghanistan that his family shared with bin Laden’s family. There, however, the connection ends, as what he is actually charged with centers on his alleged responsibility for the killing of a US soldier during a firefight in Afghanistan in July 2002.

Khadr’s defense team, led by Lt. Cmdr. William Kuebler, have long insisted that, as a "child soldier," who was just 15 years old at the time of his capture, Khadr should not be subjected to a trial at all. As they stated in a brief submitted to the judge, Col. Peter Brownback, "If jurisdiction is exercised over Mr. Khadr, the military judge will be the first in western history to preside over the trial of alleged war crimes committed by a child. No international criminal tribunal established under the laws of war, from Nuremberg forward, has ever prosecuted former child soldiers as war criminals."

This was one of the main points Khadr’s lawyers made during Monday’s hearing, and in this – along with repeated calls for the Canadian government to act on Khadr’s behalf – they were backed up by an array of international bodies, including, in the last week alone, UNICEF, the French government, and the collective weight of Human Rights Watch, Amnesty International, the Coalition to Stop the Use of Child Soldiers, and Human Rights First.

Just as significantly, Khadr’s lawyers are also challenging the very substance of the war crimes charges against their client, arguing, as civilian lawyer Rebecca Snyder explained on Monday, that Khadr is "not eligible to be tried for murder as a war crime because the alleged offense occurred during a firefight under traditional rules of war." "Soldiers are not protected targets," she told the hearing. "That is part of what war is about, killing soldiers."

The most explosive revelation in the hearing, however, which threatens to derail the entire trial, only surfaced when the authorities mistakenly released a classified document to reporters attending the hearing. At Khadr’s last hearing, in November, Judge Brownback prevented the prosecution from showing a video, retrieved from the compound, which purportedly showed Khadr making and planting roadside explosives, for the express purpose of allowing the defense to examine new and "potentially exculpatory" evidence, previously concealed from the defense team.

The evidence, we were told at the time, came from a "US government employee," who was an eyewitness to the firefight that led to Khadr’s capture. The details were not revealed, but Carol Williams of the Los Angeles Times was emboldened enough to report that the account "contradicts the government version of events and could exonerate Khadr of the war crimes with which he is charged."

On Monday, the truth about this "potentially exculpatory" evidence, revealed in an error that is typical of the farcical episodes that regularly threaten to undermine the Commissions’ credibility, more than backed up Carol Williams’ claims.

According to Michelle Shepherd of the Toronto Star, who got the story out first, Khadr was not the only person left alive when the grenade was thrown that killed Sgt. Christopher Speer. In an interview, a soldier who shot Khadr twice in the back explained that he "heard moaning coming from the back of the compound. The dust rose up from the ground and began to clear. He then saw a man facing him lying on his right side. The man had an AK-47 on the ground beside him and the man was moving. OC-1 [the soldier] fired one round striking the man in the head and the movement ceased. Dust was again stirred by this rifle shot. When the dust rose, he saw a second man sitting up facing away from him leaning against the brush. This man, later identified as Khadr, was moving … OC-1 fired two rounds, both of which struck Khadr in the back."

The report continued by stating that OC-1 "felt" that it was Khadr who threw the grenade: "Based on his extensive combat experience, OC-1 believed Khadr and the man at the back of the alley with the AK rifle were the only two alive at the time of the assault. He felt … the grenade was thrown by someone other than the man who was firing the rifle."

Shepherd reported that "controversy erupted" following the accidental release of the document, and that, for an hour and a half, there was a stand-off between the authorities, who wanted the document returned, and the journalists, who refused. While this was obviously damaging enough from the point of view of publicity, she also made the more significant observation that, "If the document had not been released by mistake it would not have been made public, leaving some to question the Pentagon’s assertion that the Guantánamo trials will be transparent."

"There’s no openness about this process," Lt. Cmdr. Kuebler explained. "It’s not that the government shouldn’t be able to protect information when there is a legitimate need to protect it. It’s the government’s overuse of classification … that basically keeps 100 per cent of the evidence in the case outside of the public’s view except if the government decides to sort of dribble it out to you."

Col. Brownback has not yet delivered his verdict on this latest revelation, but the Toronto Star made its position clear on Tuesday morning in an editorial. "Khadr is a poor poster boy for human rights," the editors stated. "But he is a Canadian citizen who faces a military tribunal that does not meet American or Canadian standards of criminal justice. If convicted in Canada even of planned, deliberate murder, under the Youth Criminal Justice Act Khadr would have faced no more than six years in custody. By July 27, he will have spent six years in the Guantánamo brig. In Canadian terms, he will have served a full sentence for a crime for which he has not yet been tried, much less convicted. This is indecent. Few Canadians have sympathy for Khadr and his family. But what is happening in Guantánamo is not justice. It is vindictiveness. And the Harper government’s acquiescence is profoundly disturbing. Before Canada suffers yet more embarrassment, Khadr should be shipped back home, under a bond to keep the peace."

Mohammed Jawad

If the thin case against Omar Khadr has only grown thinner after Monday’s revelation, the case against the second alleged "child soldier," Mohamed Jawad, is thinner still. Jawad, whose pre-trial hearing is scheduled to begin next week, is less well-known than Khadr, although I wrote a detailed article about him when the charges against him were first announced in October.

Just 17 years old at the time of his capture, Jawad, who was born to Afghan refugees in Pakistan, is not even accused of killing anyone, and is, instead, accused of attempted murder in violation of the law of war, and intentionally causing serious bodily injury, for his alleged role in a grenade attack on a vehicle carrying two US soldiers and an Afghan translator in December 2002.

Throughout his detention, Jawad has denied the allegations. In his Administrative Review Board in 2005, he insisted that he had been brought to Afghanistan from Pakistan to clear mines, and gave a long story about how he had ended up at the site of the attack with another man, who had actually thrown the grenade, whereas he had been given another grenade, but had been left unattended in the market. As I explained in my article, Jawad said that, "while shopping for raisins, he took the grenade out of his pocket and put it on the sack of raisins, but that when the shopkeeper saw it he ‘told me it was a bomb and that I should go and throw it in the river. I put the thing back in my pocket and I was running and shouting to stay away, it’s a bomb! When I got close to the river, people [the police] caught me.’"

As I also explained in October, whether Jawad was directly involved in the attack or not, "the decision to prosecute a teenager, who had no connection whatsoever with al-Qaeda, and who, at best, was a minor Afghan insurgent," appeared, after nearly six years of chest-thumping claims that Guantánamo houses "the worst of the worst," to be "both desperate and risible."

Salim Hamdan

The third defendant, whose case resumed on Thursday, is Salim Hamdan, a Yemeni who was one of Osama bin Laden’s drivers. While this too connects him to al-Qaeda, there are doubts as to whether, as the prosecution claims, he was involved in any of al-Qaeda’s plans. Lt. Cmdr. Charles Swift, Hamdan’s first military lawyer, who was passed over for promotion and essentially lost his job as a result of his vigorous defense of Hamdan (which led to the Supreme Court’s ruling against the Commissions in June 2006), certainly thought that there was little evidence against him when he first took up his case in 2003.

Last March, he told Marie Brenner of Vanity Fair, "He had never been involved in any shootings or real violence. OK, so he was a driver for one of the worst men on earth. All that really links him is that he worked for a motor pool … I thought, I can work with this." Extrapolating a little from Swift’s argument, it is, I think, perfectly valid to regard the focus on Hamdan in the Commissions as equivalent to hauling up Hitler’s driver alongside Hermann Goering and Rudolf Hess at the Nuremberg Trials.

While Hamdan’s case, like that of Omar Khadr, has attracted significant media attention over the years, his mental state has generally been overlooked, although this omission has now been corrected in the brief filed by Swift’s replacement, Major Thomas Roughneen and his team. As well as refuting allegations that he was anything more than a hired driver, who, as Carol Rosenberg described it in the Miami Herald, was working "for an income, not ideology," his lawyers are arguing that the father of four, who has never seen his youngest daughter – and has been prevented from seeing DVDs of her, which were made by his family – is unfit to stand trial, because of the deterioration in his mental health.

In pursuit of this claim, they secured the services of Emily Karam, a clinical and forensic psychiatrist, who spent 70 hours with Hamdan in Guantánamo. Dr. Karam concluded that after each meeting he "met diagnostic criteria for Post Traumatic Stress Disorder and Major Depression," including "nightmares, intrusive thoughts, memories and images, amnesia for details of traumatic events, lack of future orientation, anxiety, irritability, insomnia, poor concentration and memory, exaggerated startle responses, and hypervigilance."

"At times," she added, "his symptoms impaired his ability to participate in the evaluation," and she also noted that his symptoms "were severely exacerbated by his incarceration in solitary confinement." Dr. Karam’s conclusion was that "Mr. Hamdan is unable to materially assist in his own defense," and she warned that, if he remains in solitary confinement, "his condition will deteriorate and he will be at risk of developing more serious psychological symptoms."

It is, however, a note by Andrea Prasow, one of Hamdan’s defense lawyers, that raises more fundamental questions about the Military Commissions, which are not generally being asked, even though the tawdry spectacle of the combined weight of the US military being focused on two children and one of bin Laden’s drivers should make this oversight abundantly clear: where, in this whole surreal farce, are the real terrorists?

In a submission arguing that Hamdan’s detention in Camp VI – the most recent camp for Guantánamo’s general population, in which the detainees are held in almost total isolation – is causing him to become so "emotionally distraught and withdrawn" that it is "materially interfering with our ability to prepare [his] defense," Prasow notes, "Mr. Hamdan is aware that Omar Khadr … and Ibrahim al-Qosi, who was charged under the previous commission system, are held in Camp IV." One of the older camps, Camp IV is the least brutal of Guantánamo’s cell blocks, where the relatively small number of detainees share communal dorms, and are allowed to take part in sports, but it is Hamdan’s reference to Ibrahim al-Qosi that is particularly significant.

The Real Terrorists?

Al-Qosi, a Sudanese detainee, is one of seven other alleged al-Qaeda operatives charged in the first round of Military Commissions (between 2003 and 2005, before they were derailed by the Supreme Court), when, it was claimed, he had worked as the deputy for al-Qaeda’s financial chief, Sheikh Sayyid al-Masri, had been financed by Osama bin Laden to fight in Chechnya in 1995, and had worked as a bodyguard, driver, supplies manager and cook for bin Laden from 1996 until his capture in December 2001, as he attempted to cross the border from Afghanistan to Pakistan.

In spite of this array of charges, however, neither he nor the other six supposedly significant al-Qaeda members – who include at least two who have proclaimed their membership of al-Qaeda – have yet been charged under the new system, even though, as Hamdan clearly feels, and observers might also conclude, there is possibly more of a case to be made against at least some of these men.

Even more obvious cases for prosecution, of course, are some, or all of the 14 "high-value" detainees who were transferred to Guantánamo from secret CIA prisons in September 2006. They include Khalid Sheikh Mohammed, the self-confessed architect of 9/11, alleged senior al-Qaeda operative Abu Zubaydah, and Abdul Rahim al-Nashiri, who is accused of being the mastermind behind the bombing of the USS Cole in 2000. All three are currently back in the public eye, following an admission by CIA director Michael Hayden that they were waterboarded by the CIA. The others include 9/11 associate Ramzi bin al-Shibh, and others allegedly connected with 9/11, the 1998 African embassy bombings, the USS Cole operation, and the Bali nightclub bombing in 2002.

Reading between the lines in search of an explanation, it’s worth focusing on the infighting between the various officials involved in the Commission process, which acrimoniously spilled over into the public arena last fall, when Col. Morris Davis, the Commissions’ chief prosecutor, noisily resigned, blaming political interference from his superior officers, in a chain that led upwards from Brig. Gen. Thomas Hartmann, the Commissions’ legal advisor, and Susan Crawford, the Commission’s convening authority, to Defense Department General Counsel William J. Haynes II and Vice President Dick Cheney.

Col. Davis was upset that he was required to obey Haynes, with whom he disagreed profoundly over the latter’s desire to use evidence obtained through torture. The politicization of the process became apparent when it was revealed that the only person convicted in a Commission to date, the Australian David Hicks, had been offered a plea bargain – in exchange for his silence regarding his well-documented claims of torture and abuse at the hands of the US military – by Dick Cheney, and that Brig. Gen. Hartmann also wanted to offer a plea bargain to Hamdan, in spite of Davis’ own opposition.

One reason for wanting plea bargains is that, as with Hicks, they remove the thorny problem of how to deal with claims by detainees that they have been subjected to torture, which, rather inconveniently for the administration, remains illegal under domestic and international law. If Hamdan can also be persuaded to accept a plea bargain, the administration can at least trumpet another "success," and can possibly roll out a few more examples of low-level players to make it appear that the system is working.

Omar Khadr’s case is more complicated, but the inclusion of Mohamed Jawad may be because the military and the administration hope that they can actually produce a successful prosecution without having to resort to a plea bargain. Significantly, Jawad has never claimed that he was tortured by US forces. In his tribunal, he claimed that a false confession was tortured out of him by Afghan soldiers, but, with no evidence of mistreatment by the US military, the authorities may well be hoping that they can brush that inconvenient allegation aside. Certainly, it’s inconceivable that attempts would realistically be made to locate the Afghan soldiers who first seized Jawad in Afghanistan, and to bring them to Guantánamo to give evidence.

None of this explains what will eventually happen to the "high-value" detainees, for whom plea bargains are out of the question, but whose conviction, in a court shorn of all mention of torture, is obviously desired. But it may explain why a selection of small fish are still being used to test the waters, while the real monsters are kept out of sight and, it is hoped, out of mind.

I wonder how long they can keep it up. Until the next administration takes over? Or the one after that? Or forever? Noticeably, Khalid Sheikh Mohammed, Abu Zubaydah and Abdul Rahim al-Nashiri all mentioned, in their tribunals at Guantánamo in spring 2007, that they had been tortured during their long years in secret CIA prisons, and I’m reminded of comments made by Michael Scheuer, the former director of the CIA’s bin Laden unit, who was heavily involved in the small number of relatively controlled "extraordinary renditions" that took place before 9/11. Gazing in shock at the frenzied expansion of the program after 9/11, Scheuer told Jane Mayer, "The policymakers hadn’t thought what to do with them," adding that once a prisoner’s rights were violated there was no way of reintegrating them into the court system. "All we’ve done is create a nightmare," he added. "Are we going to hold these people forever?"

Physically, we now know where these men are – in Camp VII, a secluded addition to the prison complex whose existence remained a closely guarded secret until this week – but legally they might as well be on the moon.

Author: Andy Worthington

Andy Worthington is a historian based in London. He is the author of The Guantánamo Files, the first book to tell the stories of all the detainees in Guantanámo. He writes regularly on issues related to Guantánamo and the "War on Terror" on his Web site.