The military commissions at Guantánamo the trial system for "War on Terror" prisoners that was established in the wake of the 9/11 attacks are of enormous significance, as they are the only point at which the Bush administration’s post-9/11 detention policies (focused, for the most part, on a disturbing legal limbo between the Geneva Conventions and the U.S. court system, in which prisoners are held indefinitely without charge or trial) are tested in public.
In my book, The Guantánamo Files, I looked in detail at the first incarnation of the commissions, which was struck down in June 2006 when the U.S. Supreme Court ruled that the entire system was illegal, and its unholy resuscitation in the fall of 2006, when U.S. politicians of all political hues largely demonstrated their spinelessness or their disregard for justice by passing the Military Commissions Act (MCA). This hideously flawed piece of legislation not only revived the commissions and gave the president seemingly unlimited powers to seize and indefinitely detain anyone he regards as a "terror suspects" (including U.S. citizens), but also stripped the Guantánamo prisoners of their habeas corpus rights (their 800-year-old right to ask why they were being held), which the Supreme Court had granted them in June 2004.
While the Supreme Court struck down the MCA’s habeas-stripping provisions in another landmark case in June this year, the executive’s unlimited power to detain "terror suspects" at will has not been seriously challenged (and was, indeed, endorsed by the Fourth Circuit Court of Appeals in July, in the case of U.S. resident Ali al-Marri), and the revived military commissions have also been allowed to pursue their wayward trajectory without facing a serious legal challenge.
The result, as I have been reporting since last June, is a dysfunctional soap opera that will one day, I’m sure, be regarded as one of the bleakest periods of modern American history. In this saga of novel and ill-defined laws, in which military judges appointed by the government have struggled, for the most part, to fulfill their judicial obligations with honor, serious challenges to the system have been mounted on one occasion by the judges themselves, throughout the entire process by the prisoners’ own government-appointed military defense lawyers, and, since last fall, by Col. Morris Davis, the commissions’ former chief prosecutor. Col. Davis resigned after complaining that the process had been politicized and that his superiors not only endorsed the use of evidence obtained through torture, but also believed that the system should operate without including the option of acquittals.
After the commissions’ first limited success last March, when the Australian prisoner David Hicks accepted a plea bargain, admitting to material support for terrorism in exchange for dropping his complaints of torture by U.S. forces and receiving a short sentence to be served in his homeland, the system has stumbled from one disaster to another. An almost random mixture of, at best, peripheral figures in the Afghan conflict has been put forward for trial alongside a handful of al-Qaeda operatives alleged to have been involved in the 9/11 attacks, the African embassy bombings of 1998, and the attack on the USS Cole in 2000. Allegations of torture have plagued almost all of these cases, and in others attention has also focused on the prisoners’ age: two, Omar Khadr and Mohamed Jawad, were under 18 when captured, and should, according to the United States’ international obligations, be rehabilitated rather then punished.
The only other case to advance to trial that of Salim Hamdan, a driver for Osama bin Laden, whose trial ended just five weeks ago also failed to provide the administration with the justification it sought for creating a brand-new "terror court" after 9/11. After a two-week trial, the military jury failed to be swayed by the government’s arguments that Hamdan was guilty of conspiracy and should receive a 30-year sentence. The jury decided instead that, although he was guilty of providing material support for terrorism, the appropriate sentence was just five and a half years. Allowing for time served since he was first charged, this means that Hamdan will be eligible for release in December.
As I reported at the time, the sentence was a shock to the U.S. authorities, and it remains to be seen if they will continue to hold him even after his sentence is served. In a clear sign of the arbitrary lawlessness of the administration’s "War on Terror" policies, senior officials have always maintained that they can continue to hold prisoners as "enemy combatants" even after they have served a sentence delivered in a special court of the administration’s own devising.
The charges in the latest case to be put forward for trial by military commission demonstrate the commissions’ misplaced zeal with alarming clarity. Obaidullah, a 26-year-old Afghan, is charged [.pdf] with "conspiracy" and "providing material support to terrorism," based on the thinnest set of allegations to date: essentially, a single claim that, "[o]n or about 22 July 2002," he "stored and concealed anti-tank mines, other explosive devices, and related equipment," that he "concealed on his person a notebook describing how to wire and detonate explosive devices," and that he "knew or intended" that his "material support and resources were to be used in preparation for and in carrying out a terrorist attack."
It doesn’t take much reflection on these charges to realize that it is a depressingly clear example of the administration’s disturbing, post-9/11 redefinition of "war crimes," which apparently allows the U.S. authorities to claim that they can equate minor acts of insurgency committed by a citizen of an occupied nation with terrorism. It’s also clear that the charges involve no mention whatsoever of al-Qaeda, the 9/11 attacks, or any of the other terrorist attacks for which the commissions were supposedly established.
In addition, Obaidullah’s story, as revealed in the transcripts of his review boards at Guantánamo the combatant status review tribunal (CSRT), convened to assess his status as an "enemy combatant," and the annual administrative review boards (ARBs), convened to assess whether or not he is still regarded as a threat to the United States cast serious doubt on the veracity of even the limited allegations leveled against him.
In his first ARB, in 2005, Obaidullah refuted the allegations that have finally surfaced in his charge sheet, explaining that the mines, which were in the grounds of his parent’s compound, were left over from the pre-Taliban days, and that the notebook, which he used to record details of his everyday affairs (such as who owed him money), also contained information about planting mines because, several years before his capture, he had been forced by the Taliban to attend a school where he had been obliged to study the techniques for use against the forces of Ahmed Shah Massoud, the Taliban’s enemies in Afghanistan’s Northern Alliance.
Stating "I have no hostility towards anybody," Obaidullah also refuted a number of other allegations that did not surface in his charge sheet: specifically, that he was "recruited by al-Qaeda" at a madrassa (religious school), that, "during the time of the Taliban rule," he "helped coordinate the movement and activities of various foreign al-Qaeda operating in the Khost area," that after the U.S.-led invasion of Afghanistan on Oct. 7, 2001, he "used his compound to hide and relocate about 18 Arab al-Qaeda members to Pakistan," and that after the Shah-i-Kot campaign in March 2002 (a U.S.-led mission against al-Qaeda and Taliban remnants in a mountain range in eastern Afghanistan), he "hid six additional al-Qaeda members in his house." These, indeed, appeared to be groundless allegations, as the links between al-Qaeda and ordinary Afghans were almost nonexistent, and it was inconceivable that Obaidullah, who was just a teenager at the time of the Taliban rule, would have been in a position to liaise with al-Qaeda members.
Most striking about the transcripts of Obaidullah’s hearings, however, are his claims that he made up false allegations against another prisoner, Bostan Karim (who is also still held in Guantánamo), during his detention at the U.S. prison at Bagram airbase, and the fact that these false allegations were then used not only against Karim but also against Obaidullah himself.
A preacher and also a shopkeeper, Karim, who was 33 years old when he was captured, was reportedly "apprehended because he matched the description of an al-Qaeda bomb cell leader and had a [satellite] phone." It was also alleged that he was "possibly identified as an al-Qaeda associate, planning landmine attacks in Khost," and was "possibly identified as a person likely to have communicated with Arab al-Qaeda members operating in Peshawar, Afghanistan [sic], and working directly for Arab al-Qaeda in the Khost province."
Karim maintained that the allegations had been made by Obaidullah, who had been a partner in his shop, but had fallen out with him in a dispute over money, and it’s clear, from Obaidullah’s statements in his own hearings, that, while being interrogated by U.S. forces in Bagram, he admitted making up allegations against Karim. In his ARB in 2005, he responded to an allegation that Karim "is thought to be a Taliban commander who is getting funding from the Taliban or the Arabs" by saying, "I accepted this by force in Bagram. They told me in Bagram that Karim is one of the Taliban commanders and they forced me to say yes. I am not aware if he is a Taliban commander."
The following exchange was particularly enlightening:
Board Member: "Who forced you to say things?"
Board Member: "How did they force you?"
Detainee: "The first time when they captured me and brought me to Khost they put a knife to my throat and said if you don’t tell us the truth and you lie to us we are going to slaughter you."
Board Member: "Were they wearing uniforms?"
Detainee: "Yes. They tied my hands and put a heavy bag of sand on my hands and made me walk all night in the Khost airport. In Bagram they gave me more trouble and would not let me sleep. They were standing me on the wall and my hands were hanging above my head. There were a lot of things they made me say."
So tell me, after reading this: does charging Obaidullah for "war crimes" look like justice?