On Wednesday evening, the Associated Press reported that, in court filings, Justice Department lawyers stated that Attorney General Eric Holder has decided that a sixth Guantánamo prisoner — an Afghan named Obaidullah — will be put forward for trial by Military Commission. On November 13, when Holder announced that five prisoners — including Khalid Sheikh Mohammed — would face federal court trials for their alleged involvement in the 9/11 attacks, he also announced that five other men, previously charged in the Bush administration’s Military Commissions, would be tried in revamped version of the Commissions that the administration and Congress concocted over the summer.
Notwithstanding the weaknesses of the Military Commission trial system (some of which emerged in its first faltering outing last month), and the very real fear that it is being used by the Obama administration as a second-tier system of justice, the decision to charge Obaidullah is particularly dispiriting, as he is so clearly a peripheral character of such insignificance that putting him up for a war crimes trial risks ridicule.
As I explained in September 2008, when he became the 18th prisoner to be put forward for a trial by Military Commission (in the second version of the Commissions under George W. Bush), he was
charged 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."
As I also explained:
It doesn’t take much reflection on these charges to realize that it is a depressingly clear example of the U.S. 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.
This was not all. In his Combatant Status Review Tribunal and Administrative Review Boards at Guantánamo (the military review boards established to ascertain whether he had been correctly designated as an "enemy combatant," and whether he still posed a threat to the U.S.), he made it clear that he had made false allegations against himself and another Afghan prisoner still held — a shopkeeper named Bostan Karim — because of the abuse he had suffered, at the hands of U.S. forces, in a forward operating base in Khost and in the main U.S. prison in Afghanistan, at Bagram airbase.
The following exchange, from his ARB in 2005, when he explained that he had been "forced" to make false confessions about Karim while held in Bagram is 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.
Back in September 2008, I concluded my article by asking, "So tell me, after reading this: does charging Obaidullah for ‘war crimes’ look like justice?"
With the news that Obaidullah is to be charged again, when he is not actually accused of harming a single American, and when he may, in fact, have been tortured, through sleep deprivation and "Palestinian hanging," to produce false confessions against himself and at least one other prisoner, leads me not only to repeat the question, but to actively call for the open mockery of Attorney General Eric Holder and the lawyers and bureaucrats in the Justice Department and the Pentagon who thought that reviving the charges against him was a good idea.