This has always been a problem for the government — under George W. Bush as well as under Obama — because the use of torture is not only illegal, but information derived through its use cannot be used in US courts. To get around the first inconvenience, President Bush’s lawyers arranged for torture to be redefined, and, to overcome the second, the Bush administration initially brought the military commissions out of retirement with the intention that the prohibition on torture could be ignored.
When the first incarnation of the commissions was felled by the Supreme Court in June 2006, and Congress then dutifully brought the trial system back to life a few months later, the use of information derived through torture was banned, although gray areas were acceptable at the discretion of the military judges. To get around this, the Bush administration tried, at one point, to send in “clean teams” of FBI agents and military interrogators to try and persuade those who had been tortured to repeat their tortured confessions voluntarily. Presumably, there was as little concern about the accuracy of the confessions as there was when the men were first being tortured, because, as any expert can confirm, torture is not a useful method for extracting reliable information, but is very good for producing false confessions.
However, although the existence of the “clean teams” was touted by the Bush administration at the time that Khalid Sheikh Mohammed and other “high-value detainees” were first charged in connection with their alleged involvement in the 9/11 attacks, back in February 2008, no trial ever took place, even though, throughout 2008, Mohammed and some of the men accused with him had their only opportunities, since their capture, to address the wider world, when pre-trial hearings took place before George W. Bush left office.
How torture taints the planned trial of Khalid Sheikh Mohammed and the alleged 9/11 co-conspirators
Four years later, President Obama has finally decided to proceed with the trial of Mohammed and four of his alleged accomplices, although, as the New York Times reported last week, in an editorial entitled, “The Road We Need Not Have Traveled,” there is nothing to celebrate about this milestone finally being reached. Over ten and a half years after the attacks that spawned the disastrous “war on terror,” the dark reverberations of the Bush administration’s brutal response continue to echo throughout America, and also to pervade America’s reputation around the world.
Although Barack Obama revived the commissions for a second time in the summer of 2009, they remain a flawed and largely untested forum for trials of huge importance both domestically and internationally. The Obama administration’s revival of the commissions faced profound criticism from those who had served in Bush’s military commissions — via Lt. Col. Darrel Vandeveld and Maj. David Frakt, for example — but the administration pressed on regardless. When the news was announced, two weeks ago, that the Pentagon’s prosecutors had “formally charged” Khalid Sheikh Mohammed and four other men with war crimes “for planning and carrying out the murder of 2,976 people on Sept. 11, 2001,” the New York Times noted that their case had been referred to “a constitutionally flawed military tribunal” to be held at Guantánamo, which the editors described as “a global symbol of human rights abuses.”
In seeking to endorse the validity of the forthcoming trial by military commission, Brig. Gen. Mark Martins, the chief military prosecutor, told a Harvard audience that the use of military commissions had become “a matter of the rule of law and of recognizing that at some point justice delayed really is justice denied,” but as the New York Times countered, it does not look that way when the compromised path to this forthcoming trial is analyzed.
Describing the commissions, and their location at Guantánamo as constituting “the worst way to administer justice” to the men accused of planning and supporting the 9/11 attacks, the Times first of all took exception to the delay in bringing the men to trial, noting that they “could have been brought to trial years ago, but President Bush decided he could ignore the Constitution,” by ordering them to be held in secret CIA prisons where they were “subjected to brutal and illegal interrogations.”
These, of course, involved torture, but whereas the Times has, since 9/11, been averse to using the word torture, an exception was made in the recent editorial. After explaining how Khalid Sheikh Mohammed “was waterboarded 183 times in one month alone,” the Times added, “That torture produced no useful intelligence, according to virtually all accounts, except those offered by people like former Vice President Dick Cheney, who was the key architect of the Bush administration’s lawless detention and interrogation policies.”
The above is certainly true, and it is important to have torture declared for what it is, and also to call out Dick Cheney for his self-serving lies. However, President Obama is also to blame for the delay in launching the 9/11 trial. The Times noted that, although he took office “pledging to close Guantánamo Bay and restore the rule of law to the treatment of terrorism suspects,” he had “largely failed.”
Looming large in this failure is the fallout from Attorney General Eric Holder’s announcement in November 2009 that the five men accused of involvement in the 9/11 attacks would be tried in federal court in New York. As the Times noted, “He was absolutely right, but he failed to prepare local politicians, who claimed the trial would pose a security threat.” This problem could and should have been have been dealt with in Congress, but was not tackled adequately.
After President Obama effectively capitulated to the critics, putting the trial on hold, Congress responded by passing legislation that prevented the administration from bringing any prisoner from Guantánamo to be tried in federal court. Beaten by Congress, the administration — which, in my opinion, had fatally undermined its case for federal trials in the first place by announcing the revival of the military commissions on the same day that the 9/11 trial was announced — was obliged to announce that the men would face military commission trials at Guantánamo instead. The Times described the commissions as “a tribunal system improved from the kangaroo courts that Mr. Bush created, but still profoundly flawed.”
In conclusion, noting that, at Harvard, Gen. Martins “spoke eloquently about the need for real justice,” explaining, “If we treat the law as a luxury, we sacrifice legitimacy,” the Times stated, “We hope General Martins’s commitment to justice will persuade a highly skeptical world to accept the legitimacy of these trials; convicting and executing the prisoners after a tainted trial would be a disaster.”
However, the editors’ final words made clear that this legitimacy seemed unlikely — as indeed it does. “[A]fter all that has happened,” they wrote, “even the best-managed trial will not be able to change the fact that this country has in the last decade accepted too many damaging and unnecessary changes to its fundamental principles of justice and human rights.”
If Eric Holder’s credibility was shot when, after telling Jane Mayer of the New Yorker that history would judge how the administration handled the trial of the alleged 9/11 co-conspirators in federal court, he was obliged to accept that there would be no federal court trial at all, what remains of it, where Guantánamo is concerned, is also being tested. Along with the credibility of Barack Obama, what remains of Holder’s reputation will be under examination in the trial that will precede that of Khalid Sheikh Mohammed and his four alleged accomplices — that of Abd al-Rahim al-Nashiri.
Chinese “justice” in the case of Abd al-Rahim al-Nashiri
Al-Nashiri was one of five men who, in November 2009, Eric Holder announced would stay at Guantánamo for trials by military commission, while Mohammed and the other men would be tried in federal court in New York. Three of the five (Omar Khadr, Ibrahim al-Qosi and Noor Uthman Muhammed) have been successfully prosecuted — or, to be more accurate, have helped the administration avoid the inconvenience of actual trials by accepting plea deals — and another man, Majid Khan, an alleged “high-value detainee,” accepted a plea deal in February, apparently in exchange for agreeing to testify against Khalid Sheikh Mohammed. However, the trial of al-Nashiri is the first that involves the death penalty, and, as it is also intended to pave the way for the 9/11 trial, it needs to appear as convincing and legitimate as possible.
However, whether this is possible is in serious doubt. The case against al-Nashiri, which involved an uncomfortable pre-trial hearing in August 2010 and an uncomfortable arraignment in October last year, is tainted because of some very obvious torture — he was threatened with a gun and a power drill in a secret CIA prison in Thailand, and was then moved to a secret prison in Poland, where, notoriously, he was one of three “high-value detainees” whose waterboarding has been acknowledged by the CIA. In September 2010, he was granted “victim” status in an ongoing investigation into Polish complicity in the establishment of a secret CIA prison at Stare Kiejkuty, near Szymany.
Following the criticism of the planned 9/11 trial in the New York Times, Britain’s Daily Telegraph — a bastion of Conservatism — nevertheless savaged al-Nashiri’s trial. Peter Foster, the US editor who “moved to America in January 2012 after three years based in Beijing,” wrote an article entitled, “The Guantánamo war crimes tribunal is worse than a Bush-era horror show: it reminds me of Chinese ‘justice.’”
Despite the headline, Foster began by noting that Gen. Martins had told his Harvard audience that US military juries were “often superior to their civilian counterparts,” and that those who chose them were “mindful” that “diversity and representativeness on military panels serve the interests of justice,” adding that the convening authority exercised his or her “independent opinion” when deciding who was “best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament.”
This sounded very promising, of course, but Foster immediately followed up by stating:
To say with a straight face that al-Nashiri — terrorist or no — should be expected to trust to the “mindfulness” and “independent opinion” of the legal face of his torturers only points up the levels of double-think required to take these “fair” trials at face value. Just take a look at this redacted CIA inspector-general report from 2004 [PDF] to get an idea of what was done to al-Nashiri as he was subjected to “enhanced interrogation techniques” in CIA detention in Afghanistan, Thailand and Poland after his arrest in 2002.
He was subjected to mock executions, simulated drowning by water-boarding, scrubbed with stiff brushes until his skin was raw, threatened with a revving power drill as he stood hooded and naked, kept in such filthy conditions his CIA interrogators smoked cigars to mask the stench, held in stress positions for days on end and hauled up by his arms to the point where his shoulders were about to dislocate.
Drawing on his personal experience, he added, “If you want to live in a society where ends justify the means, where torture and inhumane treatment is inflicted in the name of the ‘greater’ good, then go and live in China and see what kind of fearful, introverted society that breeds.” He also noted that, although everyone involved — the judge, the prosecution and the defense — play their allocated roles, it “cannot disguise the fundamental lopsidedness” of the commissions, especially as, in the unlikely event that al-Nashiri is acquitted, he won’t be released because he can continue to be held as an “enemy combatant” in a “war on terror” that still seems to have no end in sight. “How very Chinese,” Foster concluded.
In another article, Foster continued his assault on the commissions, reporting from the press conference that followed the pre-trial hearings, when Richard Kammen, al-Nashiri’s lead lawyer, and “one of America’s most experienced death penalty lawyers,” launched what Foster described as “a furious broadside” against the commissions, declaring, “This will be the only court in the history of America, in our view, since the founding of the United States, where the constitution of the United States didn’t apply.”
Reeling off a catalog of complaints, Kammen “objected strenuously to being asked to submit an outline of defence arguments without seeing summaries of secret documents used by the prosecutors.” The originals are classified, and “cannot be shown to the defence because of national security concerns,” but as Kammen explained, “It is the equivalent of me saying to a member of the press, tell us what is in this briefcase and you’d better get it right, because if you don’t, we will kill you, because this document may be the critical piece of evidence that the government uses to try and kill Mr. al-Nashiri.”
The judge, Army Col. James Pohl, also rejected a request by Kammen for support to “translate up to 150,000 pages of ‘discovery’ evidence into Arabic,” to help al-Nashiri to assist his defense team. As Kammen explained, “It was extraordinarily frustrating to us … that the judge ruled that Mr. al-Nashiri, who speaks very little English, and reads none, is not entitled as a matter of law to translations of the documents underpinning the evidence that the government uses to try and kill him.” He added, “The subtext of all of this seems to be the cost. It seems to be the attitude of the military that we can kill him and do it cheaply. We think that is transparently unfair.”
It is hard not to agree, and as this dark farce, with its echoes of Chinese “justice,” rumbles on, with al-Nashiri’s case adjourned until July, and his trial unlikely to start until November at the earliest, it is difficult to see how the trials of Guantánamo’s torture victims can end well for any of those involved. The lesson must be that black sites and torture must not be revisited, but how this particular chapter in America’s recent history can be brought to a satisfactory conclusion is still difficult to discern.