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On his second full day in office in 2009, President Obama signed an executive order that was a declaration of American renewal and decency hailed around the globe. It called for the closure, in no more than a year, of the detention camp at the United States Naval Station at Guantánamo Bay, Cuba — the grim emblem of President George W. Bush’s lawless policies of torture and detention. Accompanied by other executive orders signaling a break from the Bush era of justice delayed and denied, it was a bold beginning.

What followed was not always as uplifting. The new administration decided to adopt the Bush team’s extravagant claims of state secrets and executive power, blocking any accountability for the detention and brutalization of hundreds of men at Guantánamo and secret prisons, and denying torture victims their day in court.

Attorney General Eric Holder did the right thing by ordering a trial of Khalid Shaikh Mohammed, the self-proclaimed mastermind of the 9/11 attacks, in a federal court in Manhattan. But he bungled the politics of the decision, and the administration had to abandon its plan in the face of fierce opposition from local pols and from Congressional Republicans out to portray Mr. Obama as soft on terrorism. His self-imposed one-year deadline for closing Guantánamo passed, along with the initial boldness and inspiration. Congress piled on hobbling restrictions, making the difficult task of unraveling the Bush travesty and emptying the prison practically impossible going forward.

There are now 166 men held at Guantánamo, 76 fewer prisoners than when Mr. Obama took office. Only a handful of those remaining have been charged with any crime or legal violation. About 86 of the inmates were identified more than two years ago for repatriation to their home countries or resettlement elsewhere by an Obama administration task force that reviewed each prisoner’s file.

Thanks to outrageous limits Congress placed on the transfer of Guantánamo prisoners beginning in 2010, the prisoners are still being held, with no end to their incarceration in sight. In September, a member of this stranded group, a Yemeni citizen named Adnan Farhan Abdul Latif, killed himself after a federal judge’s ruling ordering his release was unfairly overturned by an appellate court. It was the kind of price a nation pays when it creates prisons like Guantánamo, beyond the reach of law and decency, a tragic reminder of the stain on American justice.

•

The issue of closing Guantánamo scarcely came up in the 2012 campaign. But it was good to hear Mr. Obama recommit to his promise near the end of the race. “I still want to close Guantánamo,” he said during an interview on “The Daily Show With Jon Stewart” in mid-October. “We haven’t been able to get that through Congress.”

Mr. Obama did not say how he intended to move the issue forward in his second term or break the Congressional logjam. The fact is, Guantánamo cannot be emptied without ending the Congressionally imposed restrictions on transferring prisoners to the United States; on using funds to prepare facilities on American soil that could house Guantánamo detainees; and on releasing dozens of detainees who pose no threat, if they ever did, and who have been held far too long without charges or trial.

If Mr. Obama is serious about fulfilling his pledge — and we trust he is — he needs to become more engaged this time around and be willing to spend political capital. Republicans, and some Democrats, who have helped to prevent the closing of the Guantánamo prison are implacable, and dedicated to a propagandistic argument that military justice for terrorists is somehow tougher and more reliable than civilian justice. The opposite is true, but the administration has made the case poorly.

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The damaging restrictions on dealing with terrorism suspects (and, remember, this regime of false justice amounts to a second, inferior judicial system that has applied only to Muslim prisoners) are contained in the National Defense Authorization Act, the annual military budget bill. The latest version is now being hammered out on Capitol Hill and is likely to land on the president’s desk by the end of the lame-duck session.

As things stand, the restrictions in the final bill are expected to resemble the ones in current law that Mr. Obama threatened to block with a veto a year ago. He caved in at the last minute, citing added language expanding the ability of the executive branch to make exceptions to an appalling requirement that noncitizens suspected of being Qaeda operatives be held in military custody. The added language also affirmed the authority of the Federal Bureau of Investigation in terrorism matters.

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Civil liberties, human rights and religious groups are now urging Mr. Obama to veto the military authorization bill for the 2013 fiscal year if it contains any language that denies the executive branch the authority to transfer Guantánamo detainees for repatriation or settlement in foreign countries or for prosecution in a federal criminal court.

They make a powerful case. Because of the existing restrictions, including an onerous requirement for certification of detainee transfers by the secretary of defense, no detainee identified for release by the task force has been certified for transfer overseas or to the United States in nearly two years. At that rate, the chance of emptying Guantánamo before the end of even a second term is zero.

Vetoing a military budget bill is no small matter, although other recent presidents have done it. Neither is making dozens of long-serving detainees wait even longer in limbo for no good reason, preserving a recruiting tool for America’s enemies.

Extending the transfer restrictions another year without a significant loosening, or without at least a firm agreement by the White House and Congressional leaders to rejoin the issue early in the new year, would risk running out the clock and permanently marring Mr. Obama’s record of safeguarding American justice and protecting human rights.

Close Guantánamo Prison,
NYT,
25.11.2012,
https://www.nytimes.com/2012/11/26/
opinion/close-guantanamo-prison.html

The Face of Indefinite Detention

September 14, 2012
The New York Times
By BAHER AZMY

BEFORE he died on Sept. 8, Adnan Farhan Abdul Latif had spent close to 4,000 days and nights in the American prison at Guantánamo Bay, Cuba. He was found unconscious, alone in his cell, thousands of miles from home and family in Yemen.

Eleven years ago, he found himself in Afghanistan at the wrong place and the wrong time. It was an unusual set of events that took him there. Years earlier Mr. Latif had been badly injured in a car accident in Yemen. His skull was fractured; his hearing never quite recovered. He traveled to Jordan, seeking medical treatment at a hospital in Amman; then, following the promise of free medical care from a man he met there, journeyed to Pakistan, and eventually to Afghanistan.

Like so many men still imprisoned at Guantánamo, Mr. Latif was fleeing American bombing — not fighting — when he was apprehended by the Pakistani police near the Afghan border and turned over to the United States military. It was at a time when the United States was paying substantial bounties for prisoners. Mr. Latif, a stranger in a strange land, fit the bill. He was never charged with a crime.

The United States government claims the legal authority to hold men like Mr. Latif until the “war on terror” ends, which is to say, forever. Setting aside this troubling legal proposition, his death and the despair he endured in the years preceding it remind us of the toll Guantánamo takes on human beings.

Adnan Latif is the human face of indefinite detention.

In the landmark 2008 case Boumediene v. Bush, the Supreme Court ruled that Guantánamo detainees were entitled to “meaningful judicial review” of the legality of their detentions, via the writ of habeas corpus — a constitutional check obligating the government to demonstrate a sufficient factual and legal basis for imprisoning someone. The Boumediene decision, in principle, ought to have given hope to Mr. Latif and men like him.

And it was under such principle that two years later, a United States District Court judge hearing Mr. Latif’s habeas corpus petition ordered him released, ruling that the accusations against him were “unconvincing” and that his detention was “not lawful.” By that time, Mr. Latif had been cleared for release from Guantánamo on three separate occasions, including in 2009 by the Obama administration’s multiagency Guantánamo Review Task Force.

Nevertheless, the Department of Justice appealed the district court’s decision to the United States Court of Appeals for the District of Columbia Circuit — which has ruled in the government’s favor in nearly every habeas corpus appeal it has heard. The appellate court reversed the trial judge’s release order, effectively ruling that evidence against detainees must be presumed accurate and authentic if the government claims it is.

A strong dissenting opinion criticized the appellate court majority for not just “moving the goal posts,” but also calling “the game in the government’s favor.”

But Mr. Latif didn’t see it as a game. He was dying inside. Like other men, he had been on a hunger strike to protest his detention. After losing the appeal of his case, he told his lawyer, “I am a prisoner of death.”

Three months ago, the Supreme Court declined to hear the appeals of Mr. Latif and six other detainees, who pleaded for the court to restore its promise of meaningful review of their cases.

But what is unsaid in all of the court rulings is that Mr. Latif was imprisoned not by evidence of wrongdoing, but by accident of birth. In Guantánamo’s contorted system of justice, the decision to detain him indefinitely turned on his citizenship, not on his conduct.

With Mr. Latif’s death, there are now 56 Yemenis who have been cleared for release by the Guantánamo Review Task Force since 2009 but who remain in prison. President Obama, citing general security concerns, has imposed a moratorium on any and all transfers to Yemen, regardless of age, innocence or infirmity.

It is fair, and regrettable, to assume that some of these detainees will die there as well.

Mr. Latif, after all, was the ninth man to die at Guantánamo. More men have died in the prison camp than have been convicted by a civilian court (one) or by the military commissions system in Guantánamo (six). In 2006, Salah al-Salami, a Yemeni, and Yasser al-Zahrani and Mani al-Utaybi, both Saudis, were the first men to die at Guantánamo. Their deaths were called suicides, even though soldiers stationed at the base at the time have raised serious questions about the plausibility of the Defense Department’s account. (Full disclosure: the Center for Constitutional Rights represents the families of two of the men who died.)

According to the government, three more detainees committed suicide and two others died of natural causes. There has been no independent investigation into any of the deaths, however; there has been no accountability for a range of constitutional and human rights violations at Guantánamo.

The government has not yet identified the cause of Mr. Latif’s death, but it is Guantánamo that killed him. Whether because of despair, suicide or natural causes, death has become an inevitable consequence of our politically driven failure to close the prison — a natural byproduct of the torment and uncertainty indefinite detention inflicts on human beings.

The case of Adnan Latif should compel us to confront honestly the human toll of the Guantánamo prison — now approaching its 12th year in operation. We can start this reckoning by releasing the 86 other men at Guantánamo who the United States government has concluded no longer deserve to be jailed there.

Baher Azmy is the legal director

of the Center for Constitutional Rights.

The Face of Indefinite Detention, NYT, 14.9.2012,
https://www.nytimes.com/2012/09/14/
opinion/life-and-death-at-guantanamo-bay.html

Defendants in 9/11

Disrupt Hearing at Guantánamo

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.

    Defendants in 9/11 Disrupt Hearing at Guantánamo, NYT, 5.5.2012,
    http://www.nytimes.com/2012/05/06/us/
    9-11-defendants-face-arraignment-in-military-court.html

Guantánamo Trials Should Be Open

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.”

David A. Schulz is a First Amendment lawyer

and a lecturer at Yale Law School.

Guantánamo Trials Should Be Open,
NYT, 18.4.2012,
http://www.nytimes.com/2012/04/19/opinion/open-proceedings-at-guantanamo.html

Reneging on Justice at Guantánamo

November 19, 2011
The New York Times

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.

    Reneging on Justice at Guantánamo, NYT, 19.11.2011,
    http://www.nytimes.com/2011/11/20/opinion/sunday/
    reneging-on-justice-at-guantanamo.html

Judging Detainees’ Risk,

Often With Flawed Evidence

April 24, 2011
The New York Times
By SCOTT SHANE
and BENJAMIN WEISER

WASHINGTON — Said Mohammed Alam Shah, a 24-year-old Afghan who had lost a leg as a teenager, told interrogators at the prison at Guantánamo Bay, Cuba, that he had been conscripted by the Taliban as a driver before being detained in 2001. He had been caught, he said, as he tried to “rescue his younger brother from the Taliban.”

Military analysts believed him. Mr. Shah, who had been outfitted with a prosthetic leg by prison doctors, was “cooperative” and “has not expressed thoughts of violence or made threats toward the U.S. or its allies,” according to a sympathetic 2003 assessment. Its conclusion: “Detainee does not pose a future threat to the U.S. or U.S. interests.”

So in 2004 Mr. Shah was sent back to Afghanistan — where he promptly revealed himself to be Abdullah Mehsud, a Pakistan-born militant, and began plotting mayhem. He recorded jihadist videos, organized a Taliban force to fight American troops, planned an attack on Pakistan’s interior minister that killed 31 people, oversaw the kidnapping of two Chinese engineers, and finally detonated a suicide bomb in 2007 as the Pakistani Army closed in. His martyrdom was hailed in an audio message by none other than Osama bin Laden.

The Guantánamo analysts’ complete misreading of Abdullah Mehsud was included among hundreds of classified assessments of detainees at the prison in Cuba that were obtained by The New York Times. The unredacted assessments give the fullest public picture to date of the prisoners held at Guantánamo over the past nine years. They show that the United States has imprisoned hundreds of men for years without trial based on a difficult and strikingly subjective evaluation of who they were, what they had done in the past and what they might do in the future. The 704 assessment documents use the word “possibly” 387 times, “unknown” 188 times and “deceptive” 85 times.

Viewed with judges’ rulings on legal challenges by detainees, the documents reveal that the analysts sometimes ignored serious flaws in the evidence — for example, that the information came from other detainees whose mental illness made them unreliable. Some assessments quote witnesses who say they saw a detainee at a camp run by Al Qaeda but omit the witnesses’ record of falsehood or misidentification. They include detainees’ admissions without acknowledging other government documents that show the statements were later withdrawn, often attributed to abusive treatment or torture.

A Growing Wariness

Written between 2002 and 2009, the assessments reflect a growing wariness on the part of Guantánamo analysts. Early on, the reports are just a page or two and often sanguine in tone. By 2008, after scorching publicity about released detainees who joined Al Qaeda and the dwindling of the prison population to hard-core detainees, the assessments are decidedly more cautious.

For every case of an Abdullah Mehsud — someone wrongly judged a minimal threat — there are several instances in which prisoners rated “high risk” were released and have not engaged in wrongdoing. Murat Kurnaz, a German resident of Turkish ancestry, was judged in a 2006 assessment to be a member of Al Qaeda who fell into the most dangerous category: “high risk” and “likely to pose a threat to the U.S., its interests and allies.”

Nonetheless, American authorities, under pressure from both Germany and Turkey, overruled the analysts and sent Mr. Kurnaz home to Germany three months later. He did not join the global jihad but instead became a prominent critic of Guantánamo, writing a book and making countless media appearances to denounce the American prison.

Among the most revealing of the leaked documents is a 17-page guide for analysts, evidently prepared by military intelligence trainers, on how to gauge the danger posed by a detainee. It lists major clusters of detainees, including the so-called Dirty 30, who were the bodyguards of Mr. bin Laden, as well as the large group of accused Qaeda operatives captured with Abu Zubaydah, an important terrorist facilitator, at two guesthouses in Faisalabad, Pakistan, in 2002. It lists nine mosques associated with Al Qaeda, in Quebec, Milan, London, Yemen and Pakistan.

The guide shows how analysts seized upon the tiniest details as a potential litmus test for risk. If a prisoner had a Casio F91W watch, it might be an indication he had attended a Qaeda bomb-making course where such watches were handed out — though that model is sold around the world to this day. (Likewise, the assessment of a Yemeni prisoner suggests a dire use for his pocket calculator: “Calculators may be used for indirect fire calculations such as those required for artillery fire.”)

A prisoner caught without travel documents? It might mean he had been trained to discard them to make identification harder, the guide explains. A detainee who claimed to be a simple farmer or a cook, or in the honey business or searching for a wife? Those were common Taliban and Qaeda cover stories, the analysts were told.

And a classic Catch-22: “Refusal to cooperate,” the guide says, is a Qaeda resistance technique.

Yet the guide appears to be the product of years of experience at trying to turn bits of evidence of varying reliability into a conclusion. Notably, it cites as a cautionary tale the early misjudgment about Abdullah Mehsud, the Pakistani suicide bomber, who had claimed he was forced to join the Taliban. He was “an example,” the guide says, “of a detainee who successfully applied the conscription cover story as a means to secure his release from U.S. custody.”

Guantánamo emerges from the documents as a nest of informants, a closed world where detainees were the main source of allegations against one another and sudden recollections of having spotted a fellow prisoner at a Qaeda training camp could curry favor with interrogators. The assessments of many detainees amount to long lists of fellow prisoners’ claims about them.

Among the prison’s many informants, few outdid Yasim Basardah, a Yemeni whose statements are cited in the assessments of 30 detainees — even though at least three federal judges have questioned his credibility, citing his serious psychiatric problems. (In a curious twist, a judge ordered Mr. Basardah released last year, in part because she concluded that his ties to Al Qaeda had been effectively severed by his record of cooperation with American authorities. He was transferred to Spain.)

Or there is Abu Zubaydah, the Qaeda facilitator who was waterboarded while in the custody of the Central Intelligence Agency and whose interrogations are cited in the risk assessments of more than 100 prisoners. His lawyers have noted that his accusations against others have been systematically removed from government filings in court cases, an indication that officials no longer are certain of his reliability.

A few assessments acknowledge the hazards of rewarding detainees for information. “Detainee admitted that he provided information in a deliberately misleading manner in order to receive incentives from his debriefers,” said a report on Abdul Bukhary, a Saudi militant with a jihadist résumé stretching back to the Soviet-Afghan war. Mr. Bukhary told interrogators that “his memory was very bad,” to which the analysts added a skeptical note: “Feigning memory problems is a common counter-interrogation technique.”

Yet Mr. Bukhary’s observations are cited in the assessments of a dozen other prisoners without any caveat about his admitted deceptions or his claim of a poor memory. And though in July 2007 Mr. Bukhary was rated “high risk” and “likely” to pose a threat to American interests, he was sent home to Saudi Arabia and its rehabilitation program for militants just two months later.

The Release Lottery

The documents, originally obtained by the anti-secrecy group WikiLeaks but provided to The Times by another source, portray Guantánamo as a lottery with the highest stakes for both the prisoners and their American captors. A critical factor was a detainee’s country of origin. Most European inmates were sent home, despite grave qualms on the analysts’ part. Saudis went home, even some of the most militant, to enter the rehabilitation program; some would graduate and then join Al Qaeda in the Arabian Peninsula. Yemenis have generally stayed put, even those cleared for release, because of the chaos in their country. Even in clearly mistaken arrests, release could be slow.

One Afghan, Mohammed Nasim, was sent to Guantánamo in May 2003 under the belief that he was a notorious Taliban military commander of the same last name. By March 2004, analysts had realized their error: “It is assessed that the detainee is a poor farmer and his arrest was due to mistaken identity.” Yet, a review tribunal considered his case later that year as if he were the Taliban commander, and he was not sent home until April 2005 — two years after he arrived at the prison.

In some cases, the analysts showed a willingness to reconsider their judgments in light of new facts. An Afghan prisoner, Shawali Khan, was caught with what appeared to be deeply incriminating documents: a Qaeda training manual on assassination, surveillance and counterfeiting that even contained a plan to kidnap the American president, as well as a notebook from a Qaeda camp on the maintenance and use of the AK-47 and other weapons.

The problem was that the documents were all in Arabic, and six years after his capture, Mr. Khan had finally convinced interrogators that he could not read Arabic. That conclusion, analysts wrote, “lends more credence to detainee’s claim” that he had looted the material from possessions abandoned by Arab fighters who had fled Kandahar in southern Afghanistan.

A single footnote can call into question the entire case against a detainee: Abdul Haddi bin Hadiddi, a Tunisian who had spent time in Italy and was once arrested there for counterfeiting, was rated “high risk” and was believed to have received training from Al Qaeda. His assessment describes phone calls by the detainee, intercepted by Italian intelligence, with gunfire in the background.

But if the Italian dates are right, the reported calls were made after Mr. Hadiddi’s arrest. A footnote tries to sort it out: “If this was the detainee,” it says, then the reported dates of the calls must be wrong. “If this is not the detainee, it may indicate detainee’s claimed name is not his” — an astonishing acknowledgment about a man imprisoned since August 2002.

Judges Weigh In

Such frustrating case studies seem to beg for an independent evaluation of the evidence, some way of shedding light on the quality of the Guantánamo analysts’ work. As it happens, federal judges have heard nearly 60 cases brought by detainees challenging their imprisonment, and they have ruled in many of them that the government’s evidence was too thin or contradictory to justify holding the prisoner.

The 2008 assessment of Alla Ali bin Ali Ahmed, for instance, a Yemeni who denied that he had fought in Afghanistan, concluded that he was a “committed member of Al Qaeda” who posed a “high risk” to the United States.

But a federal judge who saw all the classified evidence in the case found that all four witnesses who claimed to have seen him in Afghanistan were unreliable. (The judge, Gladys Kessler, ordered Mr. Ahmed released, and he went home to Yemen in 2009.)

One witness, Judge Kessler wrote, was said by American military doctors to be suffering from “psychosis.” The assessment of that witness, a Yemeni named Musab al-Madoonee, described him as “in overall good health” and made no mention of his mental illness.

But in another case this month, another judge offered far more support for the Guantánamo analysts. Writing about another Yemeni detainee, Yasin Ismail, Judge Laurence H. Silberman of the United States Court of Appeals for the District of Columbia Circuit said he found the detainee’s account “phonier than a $4 bill” and rejected his challenge.

Judge Silberman showed sympathy for counterterrorism analysts who erred on the side of caution. In an ordinary criminal case, a judge may vote to overturn a conviction on evidentiary grounds even if he is virtually certain the defendant is guilty, Judge Silberman wrote. With a potential terrorist, he said, the stakes are different.

“When we are dealing with detainees,” Judge Silberman said, “candor obliges me to admit that one can not help but be conscious of the infinitely greater downside risk to our country, and its people, of an order releasing a detainee who is likely to return to terrorism.”

By the Pentagon’s count, as of Oct. 1, 2010, of the 598 detainees transferred from Guantánamo, 81 were “confirmed” and 69 “suspected” of engaging in terrorist or insurgent activities after their release. Accepting the highest Defense Department total, even the 25 percent rate would be lower than most estimates of recidivism rates for federal and state ex-convicts.

An Elusive Subject

But those numbers may be one reason Guantánamo officials have been loath to take a chance in the befuddling case of Detainee 257, known as Omar Hamzayavich Abdulayev, a 32-year-old Tajik. He arrived at Guantánamo when he was just 23, a month after the prison opened. Interrogators have questioned Mr. Abdulayev for nine years, intelligence officers from both Russia and Tajikistan have visited to talk to him and countless other prisoners have been asked what they know about him.

The most serious allegations came from a Kuwaiti prisoner who claimed that Mr. Abdulayev told him he was trained by Al Qaeda in poisons and explosives and had met top Qaeda operatives. But the Kuwaiti’s own assessment questioned his credibility, saying details of his account were “conflicting and vague.”

Then there is the documentary evidence: Mr. Abdulayev was caught with notebooks containing notes on explosives and lists of mujahedeen fighters. And an undated Qaeda training roster found in Afghanistan listed “Abdallah al-Uzbeki” among the trainees. An analyst, grasping for data on his elusive subject, wrote that “Abdallah” might be a variant of Abdallahyiv, a Tajik version of Abdulayev, and that al-Uzbeki “is an alias which can also be adopted by Tajiks and Afghans due to similar facial features and shared cultural beliefs and customs.”

Mr. Abdulayev appears to be an example of the most controversial category of Guantánamo detainees: the 47 whom the Obama administration has judged too dangerous for release but for whom it lacks the evidence necessary to hold a military tribunal.

Hence the haunting conclusion of his 2008 assessment: “Detainee’s identity remains uncertain.”

Scott Shane reported from Washington,

and Benjamin Weiser from New York.

Reporting was contributed by Charlie Savage

from Washington,

and William Glaberson, Andrew W. Lehren

and Andrei Scheinkman from New York.

    Judging Detainees’ Risk, Often With Flawed Evidence, R, 24.4.2011,
    http://www.nytimes.com/2011/04/25/world/
    guantanamo-files-flawed-evidence-for-assessing-risk.html

Classified Files Offer

New Insights Into Detainees

April 24, 2011
The New York Times
By CHARLIE SAVAGE, WILLIAM GLABERSON
and ANDREW W. LEHREN

WASHINGTON — A trove of more than 700 classified military documents provides new and detailed accounts of the men who have done time at the Guantánamo Bay prison in Cuba, and offers new insight into the evidence against the 172 men still locked up there.

Military intelligence officials, in assessments of detainees written between February 2002 and January 2009, evaluated their histories and provided glimpses of the tensions between captors and captives. What began as a jury-rigged experiment after the 2001 terrorist attacks now seems like an enduring American institution, and the leaked files show why, by laying bare the patchwork and contradictory evidence that in many cases would never have stood up in criminal court or a military tribunal.

The documents meticulously record the detainees’ “pocket litter” when they were captured: a bus ticket to Kabul, a fake passport and forged student ID, a restaurant receipt, even a poem. They list the prisoners’ illnesses — hepatitis, gout, tuberculosis, depression. They note their serial interrogations, enumerating — even after six or more years of relentless questioning — remaining “areas of potential exploitation.” They describe inmates’ infractions — punching guards, tearing apart shower shoes, shouting across cellblocks. And, as analysts try to bolster the case for continued incarceration, they record years of detainees’ comments about one another.

The secret documents, made available to The New York Times and several other news organizations, reveal that most of the 172 remaining prisoners have been rated as a “high risk” of posing a threat to the United States and its allies if released without adequate rehabilitation and supervision. But they also show that an even larger number of the prisoners who have left Cuba — about a third of the 600 already transferred to other countries — were also designated “high risk” before they were freed or passed to the custody of other governments.

The documents are largely silent about the use of the harsh interrogation tactics at Guantánamo — including sleep deprivation, shackling in stress positions and prolonged exposure to cold temperatures — that drew global condemnation. Several prisoners, though, are portrayed as making up false stories about being subjected to abuse.

The government’s basic allegations against many detainees have long been public, and have often been challenged by prisoners and their lawyers. But the dossiers, prepared under the Bush administration, provide a deeper look at the frightening, if flawed, intelligence that has persuaded the Obama administration, too, that the prison cannot readily be closed.

Prisoners who especially worried counterterrorism officials included some accused of being assassins for Al Qaeda, operatives for a canceled suicide mission and detainees who vowed to their interrogators that they would wreak revenge against America.

The military analysts’ files provide new details about the most infamous of their prisoners, Khalid Shaikh Mohammed, the planner of the Sept. 11, 2001, attacks. Sometime around March 2002, he ordered a former Baltimore resident to don a suicide bomb vest and carry out a “martyrdom” attack against Pervez Musharraf, then Pakistan’s president, according to the documents. But when the man, Majid Khan, got to the Pakistani mosque that he had been told Mr. Musharraf would visit, the assignment turned out to be just a test of his “willingness to die for the cause.”

The dossiers also show the seat-of-the-pants intelligence gathering in war zones that led to the incarcerations of innocent men for years in cases of mistaken identity or simple misfortune. In May 2003, for example, Afghan forces captured Prisoner 1051, an Afghan named Sharbat, near the scene of a roadside bomb explosion, the documents show. He denied any involvement, saying he was a shepherd. Guantánamo debriefers and analysts agreed, citing his consistent story, his knowledge of herding animals and his ignorance of “simple military and political concepts,” according to his assessment. Yet a military tribunal declared him an “enemy combatant” anyway, and he was not sent home until 2006.

Obama administration officials condemned the publication of the classified documents, which were obtained by the anti-secrecy group WikiLeaks last year but provided to The Times by another source. The officials pointed out that an administration task force set up in January 2009 reviewed the information in the prisoner assessments, and in some cases came to different conclusions. Thus, they said, the documents published by The Times may not represent the government’s current view of detainees at Guantánamo.

Among the findings in the files:

¶The 20th hijacker: The best-documented case of an abusive interrogation at Guantánamo was the coercive questioning, in late 2002 and early 2003, of Mohammed Qahtani. A Saudi believed to have been an intended participant in the Sept. 11 attacks, Mr. Qahtani was leashed like a dog, sexually humiliated and forced to urinate on himself. His file says, “Although publicly released records allege detainee was subject to harsh interrogation techniques in the early stages of detention,” his confessions “appear to be true and are corroborated in reporting from other sources.” But claims that he is said to have made about at least 16 other prisoners — mostly in April and May 2003 — are cited in their files without any caveat.

¶Threats against captors: While some detainees are described in the documents as “mostly compliant and rarely hostile to guard force and staff,” others spoke of violence. One detainee said “he would like to tell his friends in Iraq to find the interrogator, slice him up, and make a shwarma (a type of sandwich) out of him, with the interrogator’s head sticking out of the end of the shwarma.” Another “threatened to kill a U.S. service member by chopping off his head and hands when he gets out,” and informed a guard that “he will murder him and drink his blood for lunch. Detainee also stated he would fly planes into houses and prayed that President Bush would die.”

¶The role of foreign officials: The leaked documents show how many foreign countries sent intelligence officers to question Guantánamo detainees — among them China, Russia, Tajikistan, Yemen, Saudi Arabia, Jordan, Kuwait, Algeria and Tunisia. One such visit changed a detainee’s account: a Saudi prisoner initially told American interrogators he had traveled to Afghanistan to train at a Libyan-run terrorist training camp. But an analyst added: “Detainee changed his story to a less incriminating one after the Saudi Delegation came and spoke to the detainees.”

¶A Qaeda leader’s reputation: The file for Abd al-Rahim al-Nashiri, who was charged before a military commission last week for plotting the bombing of the American destroyer Cole in 2000, says he was “more senior” in Al Qaeda than Khalid Shaikh Mohammed, and describes him as “so dedicated to jihad that he reportedly received injections to promote impotence and recommended the injections to others so more time could be spent on the jihad (rather than being distracted by women).”

¶The Yemenis’ hard luck: The files for dozens of the remaining prisoners portray them as low-level foot-soldiers who traveled from Yemen to Afghanistan before the Sept. 11 attacks to receive basic military training and fight in the civil war there, not as global terrorists. Otherwise identical detainees from other countries were sent home many years ago, the files show, but the Yemenis remain at Guantánamo because of concerns over the stability of their country and its ability to monitor them.

¶Dubious information: Some assessments revealed the risk of relying on information supplied by people whose motives were murky. Hajji Jalil, then a 33-year-old Afghan, was captured in July 2003, after the Afghan chief of intelligence in Helmand Province said Mr. Jalil had taken an “active part” in an ambush that killed two American soldiers. But American officials, citing “fraudulent circumstances,” said later that the intelligence chief and others had participated in the ambush, and they had “targeted” Mr. Jalil “to provide cover for their own involvement.” He was sent home in March 2005.

¶A British agent: One report reveals that American officials discovered a detainee had been recruited by British and Canadian intelligence to work as an agent because of his “connections to members of various Al-Qaeda-linked terrorist groups.” But the report suggests that he had never shifted his militant loyalties. It says that the Central Intelligence Agency, after repeated interrogations of the detainee, concluded that he had “withheld important information” from the British and Canadians, and assessed him “to be a threat” to American and allied personnel in Afghanistan and Pakistan. He has since been sent back to his country.

¶A journalist’s interrogation: The documents show that a major reason a Sudanese cameraman for Al Jazeera, Sami al-Hajj, was held at Guantánamo for six years was for questioning about the television network’s “training program, telecommunications equipment, and newsgathering operations in Chechnya, Kosovo, and Afghanistan,” including contacts with terrorist groups. While Mr. Hajj insisted he was just a journalist, his file says he helped Islamic extremist groups courier money and obtain Stinger missiles and cites the United Arab Emirates’ claim that he was a Qaeda member. He was released in 2008 and returned to work for Al Jazeera.

¶The first to leave: The documents offer the first public look at the military’s views of 158 detainees who did not receive a formal hearing under a system instituted in 2004. Many were assessed to be “of little intelligence value” with no ties to or significant knowledge about Al Qaeda or the Taliban, as was the case of a detainee who was an Afghan used car salesman. But also among those freed early was a Pakistani who would become a suicide attacker three years later.

Many of the dossiers include official close-up photographs of the detainees, providing images of hundreds of the prisoners, many of whom have not been seen publicly in years.

The files — classified “secret” and marked “noforn,” meaning they should not be shared with foreign governments — represent the fourth major collection of secret American documents that have become public over the past year; earlier releases included military incident reports from the wars in Afghanistan and Iraq and portions of an archive of some 250,000 diplomatic cables. Military prosecutors have accused an Army intelligence analyst, Pfc. Bradley Manning, of leaking the materials.

The Guantánamo assessments seem unlikely to end the long-running debate about America’s most controversial prison. The documents can be mined for evidence supporting beliefs across the political spectrum about the relative perils posed by the detainees and whether the government’s system of holding most without trials is justified.

Much of the information in the documents is impossible to verify. The documents were prepared by intelligence and military officials operating at first in the haze of war, then, as the years passed, in a prison under international criticism. In some cases, judges have rejected the government’s allegations, because confessions were made during coercive interrogation or other sources were not credible.

In 2009, a task force of officials from the government’s national security agencies re-evaluated all 240 detainees then remaining at the prison. They vetted the military’s assessments against information held by other agencies, and dropped the “high/medium/low” risk ratings in favor of a more nuanced look at how each detainee might fare if released, in light of his specific family and national environment. But those newer assessments are still secret and not available for comparison.

Moreover, the leaked archive is not complete; it contains no assessments for about 75 of the detainees.

Yet for all the limitations of the files, they still offer an extraordinary look inside a prison that has long been known for its secrecy and for a struggle between the military that runs it — using constant surveillance, forced removal from cells and other tools to exert control — and detainees who often fought back with the limited tools available to them: hunger strikes, threats of retribution and hoarded contraband ranging from a metal screw to leftover food.

Scores of detainees were given disciplinary citations for “inappropriate use of bodily fluids,” as some files delicately say; other files make clear that detainees on a fairly regular basis were accused by guards of throwing urine and feces.

No new prisoners have been transferred to Guantánamo since 2007. Some Republicans are urging the Obama administration to send newly captured terrorism suspects to the prison, but so far officials have refused to increase the inmate population.

As a result, Guantánamo seems increasingly frozen in time, with detainees locked into their roles at the receding moment of their capture.

For example, an assessment of a former top Taliban official said he “appears to be resentful of being apprehended while he claimed he was working for the US and Coalition forces to find Mullah Omar,” a reference to Mullah Muhammad Omar, the Taliban chief who is in hiding.

But whatever the truth about the detainee’s role before his capture in 2002, it is receding into the past. So, presumably, is the value of whatever information he possesses. Still, his jailers have continued to press him for answers. His assessment of January 2008 — six years after he arrived in Cuba — contended that it was worthwhile to continue to interrogate him, in part because he might know about Mullah Omar’s “possible whereabouts.”

Charlie Savage reported from Washington,

and William Glaberson

and Andrew W. Lehren from New York.

Scott Shane contributed reporting from Washington,

and Benjamin Weiser and Andrei Scheinkman from New York.

    Classified Files Offer New Insights Into Detainees, NYT, 24.4.2011,
    http://www.nytimes.com/2011/04/25/world/
    guantanamo-files-lives-in-an-american-limbo.html

As Acts of War or Despair,

Suicides Rattle a Prison

April 24, 2011
The New York Times
By CHARLIE SAVAGE

WASHINGTON — By October 2004, two years into his detention at the Guantánamo Bay prison, Ali Abdullah Ahmed had established a corrosive reputation among prison officials. Mr. Ahmed’s classified file said he was a hunger striker, “completely uncooperative with interrogators,” and “had a history of aggressive behavior in the camp, often defiantly failing to comply with instructions.”

Twenty-one months later, the military announced that Mr. Ahmed, a Yemeni, and two other prisoners had simultaneously hanged themselves.

Their deaths in June 2006 — the first at Guantánamo — fueled a debate between military officials, who deemed the suicides “an act of asymmetric warfare waged against us” by jihadists seeking martyrdom, and prison critics, who interpreted them as an act of despair by men with little hope of a fair trial or release.

Since then, two other detainees have succeeded in killing themselves — one in 2007, and another in 2009. Against that backdrop, a collection of secret detainee assessment files obtained by The New York Times reveal that the threat of suicide has created a chronic tension at the prison — a tactic frequently discussed by the captives and a constant fear for their captors.

The files for about two dozen detainees refer to suicide attempts or threats. Others mention informants who pass on rumors about which prisoner had volunteered to kill himself next and efforts to organize suicide attempts. Two prisoners were overheard weighing whether it would create enough time for someone to end his life if fellow prisoners blocked their cell windows, distracting guards who would have to remove the obstructions.

While medical officials struggled to keep hunger strikers alive, other officials were on constant alert for signs of trouble. In May 2008, a detainee ordered fellow prisoners to “stop singing that song; we will sing it on Monday when our brothers leave.” His file noted: “It was assessed he meant planning suicide attempts.”

Even stray remarks about suicide could have consequences. When assessing detainees’ risk level, analysts noted whether they were said to have expressed support for suicides — lowering their chances of release.

And both sides were focused on the public-relations implications: one prisoner told others in February 2006 that a detainee’s death would “open the eyes of the world and result in the closure of the base.”

In the early years at the prison, where many detainees experienced mental health problems, suicide attempts were typically described as a medical issue. A Saudi who incurred brain damage after trying to hang himself had been “treated here for depression,” his 2004 assessment noted. The file for another detainee with 12 “serious suicide attempts,” including cutting his throat in December 2005, said he suffered from a “major depressive disorder.”

Over time, though, officials appeared to take a more wary view, the documents suggest. In January 2005, a prisoner tried to hang himself after being placed in a cell next to another detainee he suspected of being an informant. An analyst noted that he “knows how the logistics work” and that “if he ‘attempted suicide’ that he would be moved from his cell and away from” the other detainee.

But the death of Mr. Ahmed and two others in June 2006 was a turning point. It marked the climax of a period of intense mass protests and turmoil, including a failed attempt at a multiple suicide the previous month by several detainees who swallowed prescription drugs they and others had hoarded.

The three deaths have gained particular notoriety among prison critics, with some skeptics even saying that they may have been homicides. The three men’s assessments do not address how they later died.

The records, part of a collection leaked last year to the anti-secrecy organization WikiLeaks, show that the men shared a history of hostile, defiant behavior toward their captors, but also that the evidence against them varied widely.

Mr. Ahmed was arrested during a raid on a guesthouse in Pakistan that officials believed had links to Al Qaeda. He said he was a religious student who had never been to Afghanistan. Analysts thought he was lying, his file shows, because several other detainees claimed they had seen him at training camps and with members of Al Qaeda.

The second detainee, a Saudi named Mani Shaman al-Utaybi, was arrested at a Pakistani checkpoint in a taxi with four other men, all hiding under burqas. He said he was a preacher for an Islamic missionary group, an organization officials believed had sometimes helped extremists.

Mr. Utaybi’s file said had been carrying someone else’s passport and made “inconsistent statements.” One of the men arrested with him had been to a terrorist training camp — but two others had already been released. Analysts said he knew little, and recommended sending him to Saudi Arabia for continued detention.

By contrast, the file for the third detainee, a Saudi named Yasser Talal al-Zahrani, said he freely admitted that he went to Afghanistan to be a jihadist fighter. It also said he had laughingly shouted “9/11 you not forget” at a prison staff member and told a guard “he would use a knife to cut his stomach open, cut his face off, and then drink his blood, smiling and laughing as he said it.”

Several later assessments of other detainees make references to the three suicides. One such file, for example, mentions in passing that a prisoner reported that another detainee had told him “he had been approached and recruited by the three detainees who had committed suicide.”

And Mr. Ahmed’s brother, Muhammaed Yasir Ahmed Taher, who was also a detainee until his repatriation in 2009, wrote to a family member depicting Mr. Ahmed “as a martyr,” according to an assessment. An analyst concluded that both brothers “viewed the suicide as a continuance of their jihad against the US.”

Andrew W. Lehren contributed reporting from New York.

    As Acts of War or Despair, Suicides Rattle a Prison, NYT, 24.4.2011,
    http://www.nytimes.com/2011/04/25/world/
    guantanamo-files-suicide-as-act-of-war-or-despair.html

Sept. 11 suspects to be tried

at Guantanamo Bay

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.

(Reporting by Phil Stewart, James Vicini,

Jeremy Pelofsky, Matt Spetalnick

and Susan Cornwell in Washington

and Basil Katz in New York;

writing by David Alexander;

Editing by Sandra Maler and Todd Eastham)

Sept. 11 suspects to be tried at Guantanamo Bay,
R, 4.4.2011,
http://www.reuters.com/article/2011/04/04/
us-usa-guatanamo-mohammed-idUSTRE7333RI20110404

U.S. Prepares

to Lift Ban on Guantánamo Cases

January 19, 2011

The New York Times

By CHARLIE SAVAGE

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.

U.S. Prepares to Lift Ban on Guantánamo Cases, NYT, 19.1.2011,
http://www.nytimes.com/2011/01/20/us/20trials.html

Legacy of Torture

August 26, 2010
The New York Times

The Bush administration insisted that “enhanced interrogation techniques” — torture — were necessary to extract information from prisoners and keep Americans safe from terrorist attacks. Never mind that it was immoral, did huge damage to this country’s global standing and produced little important intelligence. Now, as we had feared, it is also making it much harder to try and convict accused terrorists.

Because federal judges cannot trust the confessions of prisoners obtained by intense coercion, they are regularly throwing out the government’s cases against Guantánamo Bay prisoners.

A new report prepared jointly by ProPublica and the National Law Journal showed that the government has lost more than half the cases where Guantánamo prisoners have challenged their detention because they were forcibly interrogated. In some cases the physical coercion was applied by foreign agents working at the behest of the United States; in other cases it was by United States agents.

Even in cases where the government later went back and tried to obtain confessions using “clean,” non-coercive methods, judges are saying those confessions too are tainted by the earlier forcible methods. In most cases, the prisoners have not actually walked free because the government is appealing the decisions. But the trend suggests that the government will continue to have a hard time proving its case even against those prisoners who should be detained.

In 2008, the Supreme Court ruled that Guantánamo prisoners could challenge their detention as enemy combatants in federal court, under the constitutional right of habeas corpus. Since then, the government has lost 37 of the 53 habeas cases that have been decided, largely because it could not prove the prisoners were terrorists.

In the 15 cases where prisoners have alleged coercive interrogations, according to the ProPublica report, judges have sided with the prisoners eight times. (There are probably more cases than these, but the judges’ opinions have been too heavily redacted by the government to tell.) Only three detainees in habeas cases have actually been let go.

In one compelling example, Judge Gladys Kessler of the United States District Court for the District of Columbia in November threw out the case against Farhi Saeed bin Mohammed, captured in Pakistan in 2001. The government described Mr. Mohammed as a fighter for Al Qaeda, and Judge Kessler acknowledged there was some evidence he had associated with terrorists.

But the main evidence that he was an active terrorist was supplied by another prisoner, Binyam Mohamed, who Judge Kessler said was repeatedly tortured for two years while being held in Pakistan and Morocco at the behest of the United States. His genitals were mutilated; he was deprived of sleep and food; he was held in stress positions and forced to listen to piercingly loud music.

Because the government did not dispute Binyam Mohamed’s torture — and could not otherwise prove that Farhi Mohammed was actively engaged in fighting for Al Qaeda or the Taliban — she ordered him released. The government is appealing.

At least 50 other Guantánamo prisoners have filed habeas lawsuits. Torture could also affect the trial, if there is one, of Khalid Shaikh Mohammed, who planned the 9/11 attack.

The decisions speak well of the federal judges who are adhering to civilized legal standards even when the decision to release prisoners is difficult. We hope this demonstrated respect for due process will help repair this country’s battered reputation. Had Bush-era interrogators held to similar standards, there would be fewer dubious detention cases at Guantánamo, and the government would have a much stronger case against those prisoners who are there legitimately.

Legacy of Torture, NYT, 26.8.2010,
http://www.nytimes.com/2010/08/27/opinion/27fri1.html

Appeals Court Sides With Detainee

July 3, 2010
The New York Times
By CHARLIE SAVAGE

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.”

Appeals Court Sides With Detainee, NYT, 3.7.2010,
http://www.nytimes.com/2010/07/04/us/04gitmo.html

Closing Guantánamo Fades as a Priority

June 25, 2010
The New York Times
By CHARLIE SAVAGE

WASHINGTON — Stymied by political opposition and focused on competing priorities, the Obama administration has sidelined efforts to close the Guantánamo prison, making it unlikely that President Obama will fulfill his promise to close it before his term ends in 2013.

When the White House acknowledged last year that it would miss Mr. Obama’s initial January 2010 deadline for shutting the prison, it also declared that the detainees would eventually be moved to one in Illinois. But impediments to that plan have mounted in Congress, and the administration is doing little to overcome them.

“There is a lot of inertia” against closing the prison, “and the administration is not putting a lot of energy behind their position that I can see,” said Senator Carl Levin, the Michigan Democrat who is chairman of the Senate Armed Services Committee and supports the Illinois plan. He added that “the odds are that it will still be open” by the next presidential inauguration.

And Senator Lindsey Graham, a South Carolina Republican who also supports shutting it, said the effort is “on life support and it’s unlikely to close any time soon.” He attributed the collapse to some fellow Republicans’ “demagoguery” and the administration’s poor planning and decision-making “paralysis.”

The White House insists it is still determined to shutter the prison. The administration argues that Guantánamo is a symbol in the Muslim world of past detainee abuses, citing military views that its continued operation helps terrorists.

“Our commanders have made clear that closing the detention facility at Guantánamo is a national security imperative, and the president remains committed to achieving that goal,” said a White House spokesman, Ben LaBolt.

Still, some senior officials say privately that the administration has done its part, including identifying the Illinois prison — an empty maximum-security center in Thomson, 150 miles west of Chicago — where the detainees could be held. They blame Congress for failing to execute that endgame.

“The president can’t just wave a magic wand to say that Gitmo will be closed,” said a senior administration official, speaking on condition of anonymity to discuss internal thinking on a sensitive issue.

The politics of closing the prison have clearly soured following the attempted bombings on a plane on Dec. 25 and in Times Square in May, as well as Republican criticism that imprisoning detainees in the United States would endanger Americans. When Mr. Obama took office a slight majority supported closing it. By a March 2010 poll, 60 percent wanted it to stay open.

One administration official argued that the White House was still trying. On May 26, Mr. Obama’s national security adviser, James Jones, sent a letter to the House Appropriations Committee reiterating the case.

But Mr. Levin portrayed the administration as unwilling to make a serious effort to exert its influence, contrasting its muted response to legislative hurdles to closing Guantánamo with “very vocal” threats to veto financing for a fighter jet engine it opposes.

Last year, for example, the administration stood aside as lawmakers restricted the transfer of detainees into the United States except for prosecution. And its response was silence several weeks ago, Mr. Levin said, as the House and Senate Armed Services Committees voted to block money for renovating the Illinois prison to accommodate detainees, and to restrict transfers from Guantánamo to other countries — including, in the Senate version, a bar on Yemen, Saudi Arabia, Afghanistan, Pakistan and Somalia. About 130 of the 181 detainees are from those countries.

“They are not really putting their shoulder to the wheel on this issue,” Mr. Levin said of White House officials. “It’s pretty dormant in terms of their public positions.”

Several administration officials expressed hope that political winds might shift if, for example, high-level Qaeda leaders are killed, or if lawmakers focus on how expensive it is to operate a prison at the isolated base.

A recent Pentagon study, obtained by The New York Times, shows taxpayers spent more than $2 billion between 2002 and 2009 on the prison. Administration officials believe taxpayers would save about $180 million a year in operating costs if Guantánamo detainees were held at Thomson, which they hope Congress will allow the Justice Department to buy from the State of Illinois at least for federal inmates.

But in a sign that some may be making peace with keeping Guantánamo open, officials also praise improvements at the prison. An interagency review team brought order to scattered files. Mr. Obama banned brutal interrogations. Congress overhauled military commissions to give defendants more safeguards.

One category — detainees cleared for release who cannot be repatriated for their own safety — is on a path to extinction: allies have accepted 33, and just 22 await resettlement. Another — those who will be held without trials — has been narrowed to 48.

Still, the administration has faced a worsening problem in dealing with the prison’s large Yemeni population, including 58 low-level detainees who would already have been repatriated had they been from a more stable country, officials say.

The administration asked Saudi Arabia to put some Yemenis through a program aimed at rehabilitating jihadists but was rebuffed, officials said. And Mr. Obama imposed a moratorium on Yemen transfers after the failed Dec. 25 attack, planned by a Yemen-based branch of Al Qaeda whose members include two former Guantánamo detainees from Saudi Arabia.

As a result, the Obama administration has been further entangled in practices many of its officials lamented during the Bush administration. A judge this month ordered the government to release a 26-year-old Yemeni imprisoned since 2002, citing overwhelming evidence of his innocence. The Obama team decided last year to release the man, but shifted course after the moratorium. This week, the National Security Council decided to send the man to Yemen in a one-time exception, an official said on Friday.

Meanwhile, discussions have faltered between Mr. Graham and the White House aimed at crafting a bipartisan legislative package that would close Guantánamo while bolstering legal authorities for detaining terrorism suspects without trial.

Mr. Graham said such legislation would build confidence about holding detainees, including future captures, in an untainted prison inside the United States. But the talks lapsed.

“We can’t get anyone to give us a final answer,” he said. “It just goes into a black hole. I don’t know what happens.”

In any case, one senior official said, even if the administration concludes that it will never close the prison, it cannot acknowledge that because it would revive Guantánamo as America’s image in the Muslim world.

“Guantánamo is a negative symbol, but it is much diminished because we are seen as trying to close it,” the official said. “Closing Guantánamo is good, but fighting to close Guantánamo is O.K. Admitting you failed would be the worst.”

Thom Shanker contributed reporting.

Closing Guantánamo Fades as a Priority, NYT, 25.6.2010,
https://www.nytimes.com/2010/06/26/
us/politics/26gitmo.html

No Terror Evidence

Against Some Detainees

May 28, 2010
The New York Times
By CHARLIE SAVAGE

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.
No Terror Evidence Against Some Detainees, NYT, 29.5.2010,
https://www.nytimes.com/2010/05/29/
us/politics/29gitmo.html

Tainted Justice

May 23, 2010

The New York Times

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.

Tainted Justice,
NYT, 23.5.2010,
http://www.nytimes.com/2010/05/24/opinion/24mon1.html

Judge Orders

Guantánamo Detainee to Be Freed

July 31, 2009

The New York Times

By WILLIAM GLABERSON

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.”

Judge Orders Guantánamo Detainee to Be Freed,
NYT,
31.7.2009,
http://www.nytimes.com/2009/07/31/us/31gitmo.html

Obama Issues Directive

to Shut Down Guantánamo

January 22, 2009

The New York Times

By MARK MAZZETTI

and WILLIAM GLABERSON

WASHINGTON — President Obama signed executive orders Thursday directing the Central Intelligence Agency to shut what remains of its network of secret prisons and ordering the closing of the Guantánamo detention camp within a year, government officials said.

The orders, which are the first steps in undoing detention policies of former President George W. Bush, rewrite American rules for the detention of terrorism suspects. They require an immediate review of the 245 detainees still held at the naval base in Guantánamo Bay, Cuba, to determine if they should be transferred, released or prosecuted.

And the orders bring to an end a Central Intelligence Agency program that kept terrorism suspects in secret custody for months or years, a practice that has brought fierce criticism from foreign governments and human rights activists. They will also prohibit the C.I.A. from using coercive interrogation methods, requiring the agency to follow the same rules used by the military in interrogating terrorism suspects, government officials said.

But the orders leave unresolved complex questions surrounding the closing of the Guantánamo prison, including whether, where and how many of the detainees are to be prosecuted. They could also allow Mr. Obama to reinstate the C.I.A.’s detention and interrogation operations in the future, by presidential order, as some have argued would be appropriate if Osama bin Laden or another top-level leader of Al Qaeda were captured.

The new White House counsel, Gregory B. Craig, briefed lawmakers about some elements of the orders on Wednesday evening. A Congressional official who attended the session said Mr. Craig acknowledged concerns from intelligence officials that new restrictions on C.I.A. methods might be unwise and indicated that the White House might be open to allowing the use of methods other than the 19 techniques allowed for the military.

Details of the directive involving the C.I.A. were described by government officials who insisted on anonymity so they could not be blamed for pre-empting a White House announcement. Copies of the draft order on Guantánamo were provided by people who have consulted with Mr. Obama’s transition team and requested anonymity for the same reason.

In remarks prepared for delivery at his confirmation hearings to become director of national intelligence in the Obama administration, Dennis C. Blair, a retired admiral with a long background in intelligence, endorsed the new approach and promised to enforce it rigorously. “It is not enough to set a standard and announce it,” he said.

“I believe strongly that torture is not moral, legal or effective,” he told the Senate Select Committee on Intelligence. “Any program of detention and interrogation must comply with the Geneva Conventions, the Conventions on Torture, and the Constitution. There must be clear standards for humane treatment that apply to all agencies of U.S. Government, including the Intelligence Community,” his written statement said.

As for closing Guantanamo, he said that would take time but must be done because it has become “a damaging symbol to the world.”

“It is a rallyingcry for terrorist recruitment and harmful to our national security, so closing it is important for our national security,” Admiral Blair’s statement said.

“The guiding principles for closing the center should beprotecting our national security, respecting the Geneva Conventions and the rule of law, and respecting the existing institutions of justice in this country. I also believe we should revitalize efforts to transfer detainees to their countries of origin or other countries whenever that would be consistent with these principles. Closing this center and satisfying these principles will take time, and is the work of many departments and agencies.”

The executive order on interrogations is certain to be received with some skepticism at the C.I.A., which for years has maintained that the military’s interrogation rules are insufficient to get information from senior Qaeda figures like Khalid Sheikh Mohammed. The Bush administration asserted that the harsh interrogation methods were instrumental in gaining valuable intelligence on Qaeda operations.

The intelligence agency built a network of secret prisons in 2002 to house and interrogate senior Qaeda figures captured overseas. The exact number of suspects to have moved through the prisons is unknown, although Michael V. Hayden, the departing director of the agency, has in the past put the number at “fewer than 100.”

The secret detentions brought international condemnation, and in September 2006, President Bush ordered that the remaining 14 detainees in C.I.A. custody be transferred to Guantánamo Bay and tried by military tribunals.

But Mr. Bush made clear then that he was not shutting down the C.I.A. detention system, and in the last two years, two Qaeda operatives are believed to have been detained in agency prisons for several months each before being sent to Guantánamo.

A government official said Mr. Obama’s order on the C.I.A. would still allow its officers abroad to temporarily detain terrorism suspects and transfer them to other agencies, but would no longer allow the agency to carry out long-term detentions.

Since the early days after the 2001 attacks, the intelligence agency’s role in detaining terrorism suspects has been significantly scaled back, as has the severity of interrogation methods the agency is permitted to use. The most controversial practice, the simulated drowning technique known as water-boarding, was used on three suspects but has not been used since 2003, C.I.A. officials said.

But at the urging of the Bush administration, Congress in 2006 authorized the agency to continue using harsher interrogation methods than those permitted for use by other agencies, including the military. Those exact methods remain classified. The order on Guantánamo says that the camp, which received its first hooded and chained detainees seven years ago this month, “shall be closed as soon as practicable, and no later than one year from the date of this order.”

The order calls for a cabinet-level panel to grapple with issues including where in the United States prisoners might be moved and what courts they could be tried in. It also provides for a new diplomatic effort to transfer some of the remaining men, including more than 60 that the Bush administration had cleared for release.

The order also directs an immediate assessment of the prison itself to ensure that the men are held in conditions that meet the humanitarian requirements of the Geneva Convention. That provision appeared to be a pointed embrace of the international treaties that the Bush administration often argued did not apply to detainees captured in the war against terrorism.

The seven years of the detention camp have included four suicides, hunger strikes by scores of detainees, and accusations of extensive use of solitary confinement and abusive interrogations, which the Department of Defense has long denied. Last week a senior Pentagon official said she had concluded that interrogators at Guantánamo had tortured one detainee, who officials have said was a would-be “20th hijacker” in the attacks of Sept. 11, 2001.

The report of Thursday’s announcement came after the new administration late Tuesday night ordered an immediate halt to the military commission proceedings for prosecuting detainees at Guantánamo and filed a request in Federal District Court in Washington to stay habeas corpus proceedings there. Government lawyers described both delays as necessary for the administration to make a broad assessment of detention policy.

The cases immediately affected include those of five detainees charged as the coordinators of the 2001 attacks, including the case against Mr. Mohammed, the self-described mastermind.

The decision to stop the commissions was described by the military prosecutors as a pause in the war-crimes system “to permit the newly inaugurated president and his administration time to review the military commission process generally and the cases currently pending before the military commissions, specifically.”

More than 200 detainees’ habeas corpus cases have been filed in federal court, and lawyers said they expected that all of the cases would be stayed.

Mr. Obama had suggested in the campaign that, in place of military commissions, he would prefer prosecutions in federal courts or, perhaps, in the existing military justice system, which provides legal guarantees similar to those of American civilian courts.

Some human rights groups and lawyers for detainees said they were concerned about the one-year timetable. “It only took days to put these men in Guantánamo; it shouldn’t take a year to get them out,” said Vincent Warren, the executive director of the Center for Constitutional Rights in New York, which has coordinated detainees’ lawyers.

But several groups that had criticized the Bush administration’s policies applauded the rapid moves by the new administration. Mr. Obama’s actions “reaffirmed American values and are a ray of light after eight long, dark years,” said Anthony D. Romero, executive director of the American Civil Liberties Union.

Mark Mazzetti reported from Washington,

and William Glaberson from New York.

Carl Hulse contributed reporting from Washington.

Obama Issues Directive to Shut Down Guantánamo,
NYT,
22.1.2009,
https://www.nytimes.com/2009/01/22/
us/politics/22gitmo.html

Next President

Will Face Test on Detainees

November 3, 2008

The New York Times

By WILLIAM GLABERSON

and MARGOT WILLIAMS

They were called the Dirty 30 — bodyguards for Osama bin Laden captured early in the Afghanistan war — and many of them are still being held at Guantánamo Bay, Cuba. Others still at the much-criticized detention camp there include prisoners who the government says were trained in assassination and the use of poisons and disguises.

One detainee is said to have been schooled in making detonators out of Sega game cartridges. A Yemeni who has received little public attention was originally selected by Mr. bin Laden as a potential Sept. 11 hijacker, intelligence officials say.

As the Bush administration enters its final months with no apparent plan to close the Guantánamo Bay camp, an extensive review of the government’s military tribunal files suggests that dozens of the roughly 255 prisoners remaining in detention are said by military and intelligence agencies to have been captured with important terrorism suspects, to have connections to top leaders of Al Qaeda or to have other serious terrorism credentials.

Senators John McCain and Barack Obama have said they would close the detention camp, but the review of the government’s public files underscores the challenges of fulfilling that promise. The next president will have to contend with sobering intelligence claims against many of the remaining detainees.

“It would be very difficult for a new president to come in and say, ‘I don’t believe what the C.I.A. is saying about these guys,’ ” said Daniel Marcus, a Democrat who was general counsel of the 9/11 Commission and held senior positions in the Carter and Clinton administrations.

The strength of the evidence is difficult to assess, because the government has kept much of it secret and because of questions about whether some was gathered through torture.

When the administration has had to defend its accusations in court, government lawyers in several cases have retreated from the most serious claims. As a result, critics have raised doubts about the danger of Guantánamo’s prisoners beyond a handful of the camp’s most notorious ones.

But as a new administration begins to sort through the government’s dossiers on the men, the analysis shows, officials are likely to face tough choices in deciding how many of Guantánamo’s hard cases should be sent home, how many should be charged and what to do with the rest.

The Pentagon has declined to provide a list of the detainees now being held or even to specify how many there are beyond offering a figure of “about 255.” But by reviewing thousands of pages of government documents released in recent years, as well as court records and news reports from around the world, The New York Times was able to compile its own list and construct a picture of the population still held at Guantánamo Bay.

Much of the analysis is based on records of Guantánamo hearings for individual detainees, which have been made public since 2006 as a result of a lawsuit by The Associated Press. The Times has posted those documents on its Web site arranged by detainee name.

The analysis shows that about 34 of the remaining detainees were seized in raids in Pakistan that netted three men the government calls major Qaeda operatives: Abu Zubaydah, Ramzi bin al-Shibh and Al Hajj Abdu Ali Sharqawi. Sixteen detainees are accused of some of the most significant terrorist attacks in the last decade, including the 1998 bombings at American Embassies in Kenya and Tanzania, the 2000 attack on the destroyer Cole in Yemen, and the Sept. 11 attacks. Twenty others were called Mr. bin Laden’s bodyguards.

The analysis also shows that 13 of the original 23 detainees who arrived at Guantánamo on Jan. 11, 2002, remain there nearly seven years later. Of the roughly 255 men now being held, more than 60 have been cleared for release or transfer, according to the Pentagon, but remain at Guantánamo because of difficulties negotiating transfer agreements between the United States and other countries.

Two of those still held, government documents show, were seen by Mr. bin Laden as potential Sept. 11 hijackers. The case of Mohammed al-Qahtani, whom the government has labeled a potential “20th hijacker,” has drawn wide notice because he was subjected to interrogation tactics that included sleep deprivation, isolation and being put on a leash and forced to perform dog tricks.

The other detainee deemed a potential hijacker, whose presence at Guantánamo has gone virtually unmentioned in public reports, is a Yemeni called Abu Bara. The 9/11 Commission said he studied flights and airport security and participated in an important planning meeting for the 2001 attack in Malaysia in January 2000.

The Guantánamo list also includes two Saudi brothers, Hassan and Walid bin Attash. The government describes them as something like Qaeda royalty. Military officials said during Guantánamo hearings that their father, imprisoned in Saudi Arabia, was a “close contact of Osama bin Laden” and that his sons were committed jihadists.

Walid bin Attash is facing a possible death sentence as a coordinator of the Sept. 11 attacks. Hassan bin Attash was accused of having been involved in planning attacks on American oil tankers and Navy ships.

Hassan bin Attash’s lawyer, David H. Remes, said the government’s claims about the detainees were not credible. He and other detainees’ lawyers say that the government’s accusations have been ever-changing and that much of the evidence was obtained using techniques he and others have described as torture.

“You look at all of this stuff, and it looks terribly scary,” Mr. Remes said. “But how do we know any of it is true?”

The extensive use of secret evidence and information derived from aggressive interrogations has led critics around the world to conclude that many detainees were wrongly held. Nearly seven years after Guantánamo opened its metal gates, only 18 of the current detainees are facing war crimes charges.

While both presidential candidates have said they would close the detention center, they have not said in detail how they would handle the remaining detainees.

Mr. McCain has said he would move the Guantánamo detainees to the United States but has indicated that he would try them in the Pentagon’s commission system established after 9/11. After the conviction at Guantánamo last summer of a former driver for Mr. bin Laden, Mr. McCain said the verdict “demonstrated that military commissions can effectively bring very dangerous terrorists to justice.”

Mr. Obama has said that the Bush administration’s system of trying detainees “has been an enormous failure” and that the existing American legal system was strong enough to handle the trials of terrorism suspects.

But in a speech on the Senate floor in 2006, Mr. Obama suggested that the charges against many of the detainees needed to be taken seriously. “Now the majority of the folks in Guantánamo, I suspect, are there for a reason,” he said. “There are a lot of dangerous people.”

Some of the remaining prisoners have appeared determined to show how dangerous they are. “I admit to you it is my honor to be an enemy of the United States,” said a Yemeni detainee, Abdul Rahman Ahmed, a hearing record shows. Officials said Mr. Ahmed had been trained at a terrorist camp “how to dress and act at an airport” and to resist interrogation.

A Saudi detainee, Muhammed Murdi Issa al Zahrani, was described by Pentagon officials as a trained assassin who helped plan the suicide-bomb killing of Ahmed Shah Massoud, the Afghan rebel leader, on Sept. 9, 2001.

“The detainee said America is ruled by the Jews,” an officer said at a hearing after interviewing him, “therefore America and Israel are his enemies.”

One man caught with Abu Zubaydah insisted on his innocence but described a training camp outside Kabul, Afghanistan, where, according to information he gave to interrogators, men were given “lessons on how to make poisons that could be inhaled, swallowed or absorbed through the skin.”

Mr. bin al Shibh was caught with a group of six Yemenis, all of whom are still held, after a two-and-a-half-hour gun battle. The records of those detainees include allegations that some were “a special terrorist team deployed to attack targets in Karachi.” One of the men, Hail Aziz Ahmad al Maythal, was trained in the use of rocket-propelled grenade launchers, machine guns and “trench digging, disguise techniques, escape methods, evasion and map reading,” according to the military’s accusations.

The records include many of the murky cases that typify the image of Guantánamo, where detainees take issue with their own supposed confessions and, sometimes, their identities. And those doubts too are to be part of a new administration’s inheritance.

“I was forced to say all these things,” an Algerian detainee, Adil Hadi al Jazairi bin Hamlili, said at his hearing when confronted with his confession to murder and knowledge of a plot to sell uranium to Al Qaeda. “I was abused mentally and psychologically, by threatening to be raped,” he said, adding, “You would say anything.”

Abdul Hafiz, an Afghan accused of killing a Red Cross worker at a Taliban roadblock in 2003, told a military officer that he had the perfect alibi. “The detainee states again that he is not Abdul Hafiz,” the officer reported to a military tribunal.