Tag: guantanamo

US Mourns The Victims of 9/11, But What Of The Victims Of The “War On Terror”?

In a video reportedly from 2006, a young Iraqi child was captured asking a U.S. soldier why America killed his dad. The soldier being questioned responds that it wasn’t him who killed the young boy’s father. When the child continues his line of questioning, the soldier turns the question around, asking him “do you hate Americans?” and “do you want to shoot me?” Elsewhere, graffiti on a wall in Sanaa, Yemen, depicts a U.S. drone and text written in Arabic and English by a child that says “why did you kill my family.”

Thousands of miles away, Hussein Al-Marfadi, one of many Muslim men who were incarcerated at Guantánamo Bay without charge, was transferred after 12 years in detention to Slovakia — a country where he had no roots. Lamenting his predicament, he said the Americans “killed our youth in Guantánamo and then they tossed us away like garbage.”

At another notorious prison, Abu Ghraib, a prison that the U.S. took over after it destroyed and occupied the country in 2003, Iraqis were subjected to the most egregious torture at the hands of Americans. Commenting on how his experience at the prison impacted him, Talib al-Majli — an Iraqi man who was incarcerated there for 16 months and never charged with anything — stated that “To this day I feel humiliation for what was done to me … The time I spent in Abu Ghraib — it ended my life. I’m only half a human now.”

Amid the violence of the U.S.’s war on terror, these stories, and hundreds of thousands more like them, are a reminder that Muslim people and communities have been rendered disposable as a means to the U.S.’s national security ends.

Unfortunately, the violence of the war on terror, which has been marked by militarism, draconian immigration policies, surveillance, federal terrorism prosecutions, detention, and torture has, thus far, continued unbated. This has resulted in the ongoing targeting and victimization of Muslim and other marginalized communities. Moreover, since Donald Trump began his second tenure as president, he has executed the “war on terror” with even greater fervor — expanding the post 9/11 “forever wars” and constructing new “security threats.”

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The Feds Defend Their Tortures Again

While the public’s attention this summer has been drawn to masked ICE agents arresting folks without warrants, presidentially imposed sales taxes on goods emanating from foreign countries that have been invalidated by three federal courts, and the fruitless Kabuki dance between President Donald Trump and Russian President Vladimir Putin in Anchorage, Alaska, last month, the federal government continues its slow assault on the Constitution at the U.S. Naval Base in Guantanamo Bay, Cuba.

In April, the feds suffered a major setback when a military judge ruled that evidence obtained under and as a result of torture is inadmissible at the trial of Ammar al-Baluchi, who is one of the five remaining defendants accused in the attacks of 9/11. Al-Baluchi is the nephew of Khalid Shaikh Mohammed, the so-called mastermind of the attacks. So-called because Osama bin Laden was the person designated by the feds as the mastermind until they murdered him and his family – without any 9/11-related charges having been filed against him – in his home in Pakistan.

Mohammed and al-Baluchi were to have been tried together, along with their three alleged accomplices when the feds decided that the torture of Mohammed was too egregious for them to defend in a public courtroom.

So, the prosecutors then initiated plea negotiations with Mohammed’s defense lawyers, which resulted in a plea agreement that was accepted by the court, the defense, the prosecutors and their bosses in the Department of Defense. Then the Secretary of Defense at the time, Lloyd Austin, overruled the general in charge of the prosecutions and directed the prosecutors who had initiated, drafted and publicly accepted the plea agreement to ask the court to nullify it.

Following standard rules of criminal procedure, the court declined to nullify the Mohammed plea agreement since, by the time Sec. Austin objected to it, it had become a binding contract. An appeals court disagreed, and the Mohammed case is now back in the military trial court without a trial date.

There is no trial date because there is no trial judge assigned to the case. The trial judge who accepted Mohammed’s guilty plea has since retired, and no judge has been assigned; nor are any judges volunteering for the case. The case docket consists of 40,000+ pages of documents for a judge to read prior to trial.

Whoever the judge is will be the fourth on the case. The prosecution team has changed as many times as well.

Why is this happening? Largely because military justice is to justice as military music is to music – slow, heavy, ponderous, unending and repetitive. Had President George W. Bush not created, and his successors not accepted, the crafting of a Devil’s Island 90 miles from Florida and instead permitted the Department of Justice and civilian federal judges to handle these cases, they would have been resolved 20 years ago.

But Bush believed that at Gitmo his torturers could do as they wished. He argued that because Gitmo is in Cuba, the Constitution didn’t apply, federal laws couldn’t be enforced and those meddlesome federal judges couldn’t interfere.

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Ron DeSantis’ Superior Speaks Out Amid Guantanamo Torture Accusations

Florida Governor Ron DeSantis‘ former boss weighed in on the accusations that DeSantis oversaw the torture of prisoners during his tenure at Guantanamo Bay.

DeSantis, a Republican who has become a leading conservative figure in the United States, was accused of overseeing torture at the prison where the Untied States detained suspected terrorists, despite concerns over detainees being held without criminal charges being filed.

Mansoor Adayfi, former detainee at Guantanamo Bay who was held for 14 years without being charged with a crime, made the accusation during a November 2022 interview on the Eyes Left podcast, in which he said DeSantis observed guards force-feed him amid a hunger strike, laughing during the procedure. DeSantis, however, has not been accused of torturing inmates.

These accusations reemerged on Tuesday following a report from McClatchy/The Miami Herald that shined a light on the governor’s time at Guantanamo Bay, a topic on which he has offered little public comment. He joined the Office of the Staff Judge Advocate in 2006, four years after the facility opened.

Amid these accusations of overseeing torture, DeSantis’ former supervisor, retired Navy Captain Patrick McCarthy, defended the governor, explaining that he was tasked “with detainees when there were any complaints to ensure they were lawfully addressed.”

“DeSantis served honorably and professionally in a very complex mission,” McCarthy told the Herald.

DeSantis has not publicly addressed Adayfi’s allegations, which could not be independently verified.

Retired Colonel Michael Bumgarner told the Herald that DeSantis would have had “very, very intimate knowledge” about conditions at Guantanamo Bay, which have been long criticized by human rights advocates as violating detainees’ rights and due process.

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The Circumvention of Habeas Corpus

The most profound and ominous aspect of the controversy surrounding the deportation of Kilmar Ábrego García to El Salvador is that the Trump administration has figured out a way to circumvent the right of habeas corpus, not just for foreigners but also for the American people.

Why is that important? Because without habeas corpus, a right that stretches all the way back to Magna Carta in 1215, there is no free society. As British and American legal scholars have maintained for centuries, habeas corpus is the linchpin of a free society.

For example, freedom of speech is a fundamental right that the federal government is prohibited from taking away. Let’s assume that one day, an American citizen castigates President Trump for policies he has adopted. A few days later in the middle of the night, Homeland Security agents bash down his door, take him into custody, and incarcerate him.

That’s where habeas corpus comes into play. The victim, through his lawyer, files a petition for a writ of habeas corpus with a federal judge. The judge issues the writ, which a U.S. Marshal serves on the person who is holding the critic in jail. The writ commands the custodian to immediately produce the critic in court. At the habeas hearing, the judge orders the government to show just cause as to why it is holding the critic. When it fails to do so, the judge orders the immediate release of the critic. The critic walks out of the courtroom a free person.

Thus, it is the right of habeas corpus that enforces the right of freedom of speech and the exercise of other rights. Without habeas corpus, people’s rights become a dead letter. That’s how important habeas corpus is.

The Framers understood the critical importance of habeas corpus to a free society. That’s why they enshrined it in the Constitution.

The right of habeas corpus developed over centuries of resistance by the British people to the tyranny of their own government. For example, after Magna Carta, English common law courts developed and applied the writ against the king’s arbitrary imprisonment of English citizens. In 1679, Parliament adopted the Habeas Corpus Act, which clarified and codified much of what English courts were doing from the 13th century through the 17th century.

Needless to say, rulers who have dictatorial proclivities hate habeas corpus. They don’t want any judicial interference with their decisions to incarcerate people who question their decisions, who they sometimes refer to by the label “terrorist.”

In the midst of the Civil War, for example, President Lincoln suspended habeas corpus, which enabled military officials to arbitrarily arrest and incarcerate critics of Lincoln. When the Supreme Court declared Lincoln’s act unconstitutional, Lincoln simply ignored the ruling.

After the 9/11 attacks, the Pentagon and the CIA established a torture and prison camp at their base in Guantanamo Bay, Cuba. The reason they established it in Cuba was because they figured that it would be totally independent of U.S. judicial interference and the U.S. Constitution, including habeas corpus. The Supreme Court ultimately held otherwise, declaring that Gitmo remained within the jurisdiction of the federal judiciary.

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Killing the Constitution at Guantánamo

When British kings wanted to dispose of troublesome enemies – real or imagined – they often had them or their colleagues arrested on pretextual charges and then brutally tortured until confessions were extracted. The confessions were then read aloud during so-called trials; and, of course, the defendant was convicted of whatever crime was the subject of the confession.

All this was done in order to satisfy the political, and in many cases the personal, desires of the monarch by creating the impression of due process.

Often the torture occurred in remote places, so remote that there was no government there, and the king and his counselors could argue that the protections of the British traditions of fair play – the British do not have a written Constitution, but rather a set of traditions – was not violated because the torture occurred in a place where the traditions did not apply.

When one of the victims of this practice was an official who had previously engaged in perpetrating it, the House of Commons, many of whose members feared becoming victims of the monarch’s desires, adopted the principle of habeas corpus. That ancient right compelled the jailer of any person anywhere to bring the jailed person before a neutral magistrate and justify the confinement.

Due process has numerous definitions and aspects, but for constitutional purposes it basically means that all charged persons are presumed innocent and entitled to a written notice of the charges, a speedy and fair hearing before a neutral fact finder, a right to appeal; and the entire process imbued with fairness and a profound recognition of personal innocence until guilt is proven beyond a reasonable doubt. Due process also explicitly prohibits the use of torture.

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The True Cost of Guantánamo

On January 10th, one day before the 23rd anniversary of its opening, a much-anticipated hearing was set to take place at the Guantánamo Bay Detention Facility on the island of Cuba. After nearly 17 years of pretrial litigation, the prosecution of Khalid Sheikh Mohammed (KSM), the “mastermind” of the devastating attacks of September 11, 2001, seemed poised to achieve its ever-elusive goal of bringing his case to a conclusion.  After three years of negotiations, the Pentagon had finally arranged a plea deal in the most significant case at Guantánamo. Along with two others accused of conspiring in the attacks of 9/11, KSM had agreed to plead guilty in exchange for the government replacing the death penalty with a life sentence.

After more than 50 pre-trial hearings and other related proceedings, Americans – and the victims’ families – would finally see closure for those three individuals who stood at the center of this country’s attempt to reckon legally with the 9/11 attacks.

Because of the fact that the defendants had been tortured at notorious CIA “black sites” before arriving at Guantánamo, the case had long been endlessly stalled. After all, so much of the evidence against them came from torture confessions. As it happens, such evidence is not admissible in court under U.S. or international law, or even under the rules of Guantánamo’s military commissions. For obvious reasons, it’s considered tainted information, “the fruit of the poisonous tree,” and so inadmissible in court. Although military commission prosecutors tried repeatedly over the years to find ways to introduce that all too tainted evidence at trial, attempts to do so failed time and again, repeatedly pushing potential trial dates years into the future. As a recently compiled Center on National Security chart shows, the forever delays in those hearings led to calendars of such length as to defy comprehension. In Khalid Sheikh Mohammed’s case, for example, such delays have so far amounted to 870.7 weeks.

With the plea deal now set to come before Judge Matthew McCall, who had agreed to delay his retirement in an effort to see this case to its conclusion, attorneys, journalists, and victims’ family members boarded planes, preparing to witness the longed-for conclusion to a case that had seemed endless. Perhaps you won’t be surprised to learn, however, that the hearing never took place. Delay was again the name of the game. As it turned out, from the moment the plea deal was announced, it became the centerpiece of an intense battle launched by then-Secretary of Defense Lloyd Austin.

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Guantanamo: Deal or No Deal?

“Oh, what a tangled web we weave
When first we practice to deceive.”
~ Sir Walter Scott (1771-1832)

The case of the Gitmo plea agreement keeps getting curiouser and curiouser.

A few weeks ago, we learned that a plea agreement had been entered into by way of a signed contract between the retired general in the Pentagon who is supervising all Gitmo prosecutions, the Gitmo defendants and defense counsel, and the military prosecutors. The agreement, as we understand it from sources who have seen it, provides that in return for a guilty plea, Khalid Shaikh Mohammed and others will serve life terms at Gitmo, rather than be exposed at trial to the death penalty. The guilty plea is to include a public and detailed recitation of guilt.

Stated differently, Mohammed agreed to reveal under oath the nature and extent of the conspiracy that resulted in the crimes of 9/11.

So far, this is straightforward. While the trial judge may have given his nod of approval to the terms of the agreement, under the federal rules of criminal procedure, the agreement is not final until the judge hears the defendants actually admit guilt under oath in a public courtroom and then accepts the plea in a written order.

That admission has not yet taken place because the Secretary of Defense, who learned of the plea agreement while traveling in Europe, removed the authority of the retired general supervising the prosecution to enter into plea agreements without his express approval.

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Gitmo and Politics

It is always dangerous to human freedom and due process when politics interferes with criminal prosecutions. Yet, present-day America is replete with tawdry examples of this.

The recent exposures of the political machinations of the Chief Justice of the United States in the presidential immunity case is just one sad example of the highest judge in the land determined to change the law, even at the cost of sacrificing good jurisprudence; and this from a jurist who once promised the Senate that he envisioned himself as a mere baseball umpire – just calling balls and strikes. Now, he is a historical revisionist, ruling that the Framers actually wanted an imperial presidency.

His rationale was his understanding of history – not the laws, not precedent, not the Constitution, not morality; a first in modern Supreme Court history.

But this awkward behavior, in which he also engaged when he changed his mind at the last minute and saved Obamacare from constitutional extinction because he was convinced that Mitt Romney would defeat Barack Obama in 2012, sends messages to those who enforce the law and those who interpret it that due process can take a back seat to politics.

That is happening at the prosecution of Khalid Shaikh Mohammed at the U.S. Naval Base in Guantanamo Bay, Cuba. Here is the backstory.

After the dust settled from the attacks on 9/11 and the federal government responded by assaulting the Bill of Rights at home and innocent Afghani peasants abroad, it declared that the mastermind of the attacks was Osama bin Laden. It never charged bin Laden with any crime, but it dispatched a team of killers to assassinate him in his home, which they did. Then the feds decided that bin Laden was not the mastermind; Mohammed was.

By the time of bin Laden’s death, Mohammed had been captured and had undergone years of torture at the hands of the CIA, and he was incarcerated at the prison camp at Gitmo. He was eventually charged with conspiracy to commit mass murder and was put into the hands of a military tribunal, which Congress had established at the insistence of the George W. Bush administration believing that military men on a military court would administer swift and rough justice.

Then, his lawyers argued successfully to the Supreme Court that conspiracy is not a war crime and thus not triable before a military tribunal. In so ruling, the Court overruled an appellate court decision written by the Supreme Court’s Chief Justice back when he was an appellate judge – another Supreme Court first.

Then Congress changed the format of the tribunals so that they’d follow the Federal Rules of Criminal Procedure and effectively turned them into federal courts in Cuba with military trappings.

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Khalid Sheikh Mohammed and the Problem of Torture

In the months following the attacks of 9/11, the government laid the blame for orchestrating them on Osama bin Laden. Then, after it murdered bin Laden, the government decided that the true mastermind was Khalid Sheikh Mohammed.

By the time of bin Laden’s death, Mohammed had already been tortured by CIA agents for three years at various black sites and charged with conspiracy to commit mass murder, to be tried before an American military tribunal at Guantanamo Bay, Cuba.

Mohammed and four other alleged conspirators have been awaiting trial since their arrivals at Gitmo in 2006. Since then, numerous government military and civilian prosecutors, as well as numerous military judges, have rotated into and out of the case. Two weeks ago, the government and the defendants agreed to a guilty plea in return for life in prison at Gitmo. Then, last week, the Department of Defense abruptly changed its mind and rescinded its approval of the guilty pleas.

Here is the backstory.

The concept of military tribunals for the perpetrators of the 9/11 attacks was born in the administration of President George W. Bush, who argued that the attacks, though conducted by civilians on civilians, were of military magnitude and thus warranted a military response. Throughout the entire 22-year existence of the U.S. military prison at Gitmo, no one has been tried for causing or carrying out the crimes of 9/11. The government tried only one person for crimes related to 9/11. That was Zacarias Moussaoui, who pleaded guilty in federal court in Virginia to conspiracy for being the 20th hijacker and then was tried in a penalty phase trial where the jury chose life in prison.

Bush’s rationale not only brought us the fruitless and destructive wars in Afghanistan and Iraq; it also brought a host of legal problems unforeseen by Bush and his revenge-over-justice colleagues. The first legal issue was conspiracy. Since Mohammed did not carry out the attacks, he could only be charged with planning them. But conspiracy is not a war crime, and thus no military tribunal could hear the case. So Congress came up with a historic first — a military tribunal that would try civilian crimes.

The next issue was where to try Mohammed and his colleagues. President Barack Obama wanted to close Gitmo, which costs $540 million annually, and try Mohammed and the others in federal courts. This would have been consistent with federal law and the U.S. Constitution. But Republicans in Congress viewed Mohammed as too dangerous to bring onto U.S. soil, and so Congress enacted legislation that prohibits the removal of Mohammed and the others to the U.S. for any purpose.

The prohibition on removal means that any life terms would need to be spent at Gitmo. It also means that there would be a legal obstacle to the execution of a death sentence, as Gitmo is not equipped to execute anyone.

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GUANTÁNAMO PROSECUTORS ACCUSED OF “OUTRAGEOUS” MISCONDUCT FOR TRYING TO USE TORTURE TESTIMONY

IN A PRETRIAL HEARING Tuesday at the Guantánamo Bay military tribunal, Clive Stafford Smith, a lawyer for a potential witness in the war crimes case, accused government prosecutors of “outrageous” misconduct.

During the hearing for the case of Abd al-Rahim al-Nashiri, who is charged with masterminding the October 2000 attack on the USS Cole, Stafford Smith said the government attorneys had failed to release exculpatory information about Nashiri and made false statements in the course of their failure.

Stafford Smith, the lead counsel for Ahmed Rabbani, a former Guantánamo detainee who was tortured by the CIA, made the allegations after being called to the witness stand by Nashiri’s defense team.

Stafford Smith testified that the prosecutors had filed a brief that falsely said Rabbani had not recanted his initial testimony because, Rabbani said, it was made under torture. After raising the omission, Stafford Smith said, he felt it was not getting due attention and took the unusual step of reporting the prosecutors to their state bar associations.

“I’ve never, ever, in 40 years reported someone to the bar before this case,” Stafford Smith said in court. “I don’t like doing that, but I felt I was required to.”

In the court motion last year that set off Stafford Smith’s ethics complaints, the Guantánamo prosecutors said they had no knowledge of Rabbani’s recantation or claims the testimony in question were extracted by torture. (The chief prosecutor’s office declined to comment for this story.)

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