More Farcical Proceedings at the Military Commissions in Guantánamo

By Andy Worthington, July 17, 2014

Last week I published "The 9/11 Trial at Guantánamo: The Dark Farce Continues," the first of two articles providing updates about the military commissions at Guantánamo.

The commissions were established under President George W. Bush in November 2001, were ruled illegal by the Supreme Court in June 2006, revived by Congress in the fall of 2006, suspended by President Obama in January 2009, and revived again by Congress in the fall of 2009, but they have always struggled to establish any credibility, and should not have been revived by the Obama administration.

Last week's article, as the title indicates, covered developments -- or the lack of them -- in pre-trial hearings for Khalid Sheikh Mohammed and four other men accused of involvement in the 9/11 attacks, who were held and tortured in CIA "black sites" for years before their arrival in Guantánamo in September 2006.

These five -- all designated by President Bush as "high-value detainees" -- were first charged in February 2008, and then, under President Obama, were going to be prosecuted in federal court in New York until opponents of the idea started making a fuss and President Obama capitulated and returned them to the military commissions instead.

The ongoing pre-trial hearings for Abd al-Rahim al-Nashiri

This second article looks primarily at developments -- or the lack of them -- in the case of another "high-value detainee," Abd al-Rahim al-Nashiri, who was also held and tortured in CIA "black sites" prior to his arrival at Guantánamo in September 2006, and is one of three prisoners that the U.S. admits to having subjected to waterboarding (an ancient form of torture, which involves controlled drowning). Al-Nashiri is accused of masterminding the attack on the USS Cole in 2000, in which 17 U.S. sailors were killed, and 39 were injured.

Like the 9/11 co-accused, he was first charged under President Bush in 2008, but unlike KSM and the other four men he was never considered for a federal court trial under Obama. When the planned New York 9/11 trial was announced in November 2009, he was one of five men put forward for the third version of the commissions -- the one that the Obama administration unwisely endorsed -- even though, from the beginning, no one could genuinely explain what criteria were used to decide who would be put forward for federal trials, and who would be tried by military commission.

For all these prisoners, the heart of the problem, as I explained in March, is that "they were subjected to torture -- which, of course, makes a fair and open trial improbable, and has led to a protracted game of cat and mouse as the government tries to suppress all mention of torture, while the defense teams try to expose it."

When I last wrote about al-Nashiri's case, in the article in March that I mentioned above, based on hearings in February, al-Nashiri had briefly threatened to sack his civilian lawyer, Rick Kammen, lawyers in the case had sparred over the use of hearsay evidence, and had held a secret meeting with the judge regarding CIA "black sites," and his own legal team had sought to have the death penalty dismissed in the case of a conviction because of the use of secret evidence which al-Nashiri cannot see, and had held another secret meeting with the judge to discuss the use of classified information. At the end of it all, Judge Pohl had set a date of December 4 for the trial to begin, although as I noted at the time, "it remains to be seen if that date will hold."

On April 9, a redacted transcript for the secret meeting with the judge (on February 22) regarding information about al-Nashiri's imprisonment in CIA "black sites," was released, just five days after McClatchy reported that the Senate Intelligence Committee's as yet unpublished six-year, $40 million report on torture found that "CIA officers subjected some terrorism suspects after the Sept. 11 attacks to interrogation methods that were not approved by either the Justice Department or their own headquarters, and illegally detained 26 of its 119 captives in CIA custody."

Al-Nashiri's lawyers, of course, are seeking information that will help them to prepare for their client's planned trial. As the Miami Herald reported, "Defense lawyers have security clearances that allow them to know certain aspects of the still-secret CIA Rendition, Detention and Interrogation program," but "they aren't entitled to a list of nations and names" as they prepare for the trial.

At the hearing on February 22, Rick Kammen, al-Nashiri’s civilian lawyer since 2008, argued, as the Miami Herald described it, that CIA agents "so fundamentally dismantled their prisoner’s personality with [their] 'enhanced interrogation' program that he told investigators what they wanted to hear."

Kammen said, "The guy that was arrested is dead. They haven’t killed his body but they’ve killed whoever that guy was. Because that’s what this program was designed to do, it was designed to turn people into a state of learned helplessness where they were powerless to say no to government agents."

Al-Nashiri's case also clearly demonstrates how torture remains the central issue around which notions of justice must be gauged. The government argues that, because the CIA's Rendition, Detention and Interrogation program remains classified, "even defense lawyers with security clearances aren’t entitled" to all the details of how, where and by whom he was treated. If al-Nashiri "happens to remember the places he was kept, he can volunteer the details to his lawyers," as the Miami Herald put it, but, absurdly, his defense team "cannot discuss with him 14 percent of the so-called discovery in his case because it is classified at a level that Nashiri can’t hear about," according to prosecutors.

Judge Pohl orders prosecutors to provide detailed information about al-Nashiri's torture to his lawyers

Nevertheless, on April 14, the judge in his case, Army Col. James Pohl, who is the commissions' chief judge and also presides over the 9/11 trial, ordered prosecutors to comply extensively with the defense's requests, as the following excerpts from his ruling show:

5. The Prosecution will provide the Defense the following discovery information:

a. A chronology identifying where the Accused was held in detention between the date of his capture to the date he arrived at Guantanamo Bay, Cuba in September 2006;

b. A description of how the Accused was transported between the various locations including how he was restrained and how he was clothed;

c. All records, photographs, videos and summaries the Government of the United States has in its possession which document the condition of the Accused's confinement at each location, and the Accused's conditions during each movement between the various locations;

d. The identities of medical personnel (examining and treating physicians, psychologist, psychiatrists, mental health professionals, dentists, etc.), guard force personnel, and interrogators, whether employees of the United States Government or employees of a contractor hired by the United States Government, who had direct and substantial contact with the Accused at each location and participated in the transport of the Accused between the various locations. […]

e. Copies of the standard operating procedures, policies, or guidelines on handling, moving, transporting, treating, interrogating, etc, high value detainees at and between the various facilities identified in paragraph 5a.

The order also includes further points -- f to j -- not mentioned here.

In response to the ruling, Rick Kammen described the information the judge ordered released as material that "the prosecution has publicly resisted producing," adding, "The prosecution’s argument that the defense is precluded from checking the government’s work is frivolous. One of the defense functions is to check the government’s story."

The CIA, on the other hand, refused to discuss whether or not they would comply with Judge Pohl's order. The day after (April 23), prosecutors instead filed a motion asking the judge to reconsider his order, at a session where discussions took place regarding the planned trial in December, and Judge Pohl stated that he thought it might last up to a year, and that he might have to hand it, or the 9/11 trial, to another judge, to avoid an impossible workload.

On April 24, torture once more resurfaced, when Dr. Sondra Crosby, an expert in treating victims of torture, was called upon to provide an assessment of al-Nashiri, and stated, "I believe that Mr. al Nashiri has suffered torture -- physical, psychological and sexual torture." She was responding to a defense motion seeking to establish that military doctors had failed to treat him for the Post Traumatic Stress Disorder and major depression he was diagnosed with last year by a military medical board, and sought to delay the start date for his trial.

The Miami Herald reported that Dr. Crosby said of al-Nashiri, "He suffers from chronic pain. He suffers from anal-rectal complaints," and also has "difficulty defecating, hemorrhoids, pain in sitting for a long time," which, she said, were typical of "survivors of sexual assault."

She also explained that he "has scars on his wrists, legs [and] ankles" which are "consistent with the allegations and history that he gave me," and stated that he "suffers from wide mood swings" -- from "irritability, anger, extreme emotional intensity to silence" -- which, she said, are "red flags" of the trauma caused by torture.

She also noted that "military medical staff treating him had failed to ask the right questions, if any," and, having been given access to his medical history since his arrival at Guantánamo, added, "There was no trauma history in the records I read. They treated the symptoms without treating the cause."

On April 27, an alternative perspective was provided by an Army psychiatrist who testified anonymously via video feed from Texas, and who stated that his primary finding was that al-Nashiri had Narcissistic Personality Disorder, rather than "some stressor that happened years ago."

The chief prosecutor unsuccessfully urges Judge Pohl to withdraw his order

The next development came on May 4, with a New York Times article focused on AE120D.pdf(a motion submitted on April 23) by the chief prosecutor, Brig. Gen. Mark Martins, who asked Judge Pohl to withdraw his order requiring the government to give defense lawyers detailed classified information about al-Nashiri's treatment in CIA "black sites." Brig. Gen. Martins asked the judge to allow the wider struggle over the Senate torture report to play out, and also revealed, in a statement on April 27, that "he had been pushing the CIA for more than a year to declassify additional information about what interrogators did to Mr. Nashiri, allowing it to be discussed with the defendant and examined in open court."

In his motion, Brig. Gen. Martins also attached a copy of a letter sent on February 10 from White House counsel Kathryn Ruemmler, to Sens. Dianne Feinstein and Carl Levin, the leaders of the Senate Intelligence and Armed Forces Committees. explaining that CIA director John Brennan "was taking steps to declassify certain information about the program."

On May 28, at Guantánamo, the wrangling continued. As prosecutors continued to put pressure on Judge Pohl to rescind his order, Rick Kammen told the judge, "It’s a brave and courageous order. That’s why they want you to walk it back." He added, "The cynical part of me thinks it’s going to get you fired," and, as the Miami Herald described it, compared "the magnitude of what Pohl did to Judge John Sirica‘s order to the White House to produce audiotapes in the Watergate scandal."

Brig. Gen. Martins responded by offering to tweak the existing protective order, to allow prosecution lawyers to share, for the first time, a limited amount of classified information with al-Nashiri's legal team.

The day after, another closed session took place, and the story then went quiet again until June 26, when Judge Pohl responded to that closed session by issuing AE120AA.pdf(an 11-page ruling), which, as the Miami Herald described it, "retain[ed] the thrust" of his April discovery order.

Prior to the revised ruling being unsealed, the Miami Herald also noted that a memo circulated in the office of the Chief Defense Counsel stated that Judge Pohl "stands by the prior order, insofar the government is required to produce information about the who, what, where, and when of both Nashiri and his alleged co-conspirators' treatment in CIA custody," but noted that it has one "major concession," giving prosecutors some "leeway in redacting, ‘anonymizing’ and summarizing the details," via a footnote in which the judge "suggests that prosecutors might selectively invoke the Intelligence Identities Protection Act" to "withhold from defense lawyers the names of CIA agents who worked at the black sites." The newspaper added that it was unclear if, in addition, the government could "shield the identities of medical personnel, guards, interrogators and contractors on a case-by-case basis."

Since then, Judge Pohl has resigned from al-Nashiri's case, appointing, on July 10, Air Force Col. Vance H. Spath as his successor. He wrote that he chose to step down "to ensure continuity of the proceedings and to avoid scheduling conflicts" with the 9/11 trial. This was flagged up previously, but it is still slightly unnerving that he has withdrawn form the trial, having shown such unwillingness to back down when criticized by prosecutors.

It remains to be seen how Col. Spath will perform. On May 27, it was revealed that the trial date had been moved back to February 9, 2015, so he has just seven months to settle into his new role. Judge Pohl had scheduled a hearing for August 4 to 8, but it is at present unclear if the new judge will stick to that timetable.

Abd al-Hadi a-Iraqi is charged

In other developments, charges were referred on June 3 against Abd al-Hadi al-Iraqi, one of the last prisoners to arrive at Guantánamo in 2007, after being captured in Turkey in October 2006. A Pentagon press release announced that, "as a senior member of al Qaeda," he "conspired with and led others in a series of unlawful attacks and related offenses in Afghanistan, Pakistan, and elsewhere from 2001 to 2006. These attacks and other offenses allegedly resulted in the deaths of U.S. and coalition service members."

On June 18, al-Iraqi, who is now 53 years old, was arraigned, and Carol Rosenberg reported that he "looked significantly older than his pre-capture photo." He told the judge, Navy Capt. J. Kirk Waits, that he wanted a civilian attorney as well as his Pentagon-assigned military lawyers, because "a civilian lawyer would receive less resistance in Iraq and Afghanistan than a member of the military would," as one of his attorneys, Army Lt. Col. Chris Callen, explained.

Although al-Iraqi is not accused of murder, Rosenberg noted that he is accused of "classic war crimes punishable by life in prison" -- specifically, "targeting medical workers and civilians as well as foreign troops in Afghanistan" -- in 2003 and 2004.

He is regarded by the U.S. authorities as being involved with both al-Qaeda and the Taliban, but as Lt. Col. Callen said, "If you would say he’s Taliban, we would argue he’s a lawful combatant." He added, "It seems at the start of the war they conflated the two," then adopted a policy of "pick one."

Al-Iraqi is originally from Mosul, although he has a wife and children in Afghanistan, and his lawyers describe him as "a courteous former non-commissioned officer in the Iraqi Army who handled logistics and administrative functions during the 1980-88 Iran-Iraq war," who then "fled his homeland for a new life in Afghanistan after Saddam Hussein’s invasion of Kuwait, and before the U.S.-led Operation Desert Storm."

They added that he hasn't taken part in hunger strikes, is a pious Muslim, and has read everything in the library in the secretive Camp 7, where the "high-value detainees" are held. They also describe him as "more like a Taliban soldier than a terrorist."

No conclusion

I hope that the analysis above demonstrates, as did last week's article on the 9/11 trial, that justice remains elusive at Guantánamo, and will do so until the military commissions are scrapped, and the trials are moved to federal court instead, something that should've taken place in 2009. If that had happened, we might have been in a position to have been talking about these trials in the past tense. As it is, every time the court convenes, it most closely resembles Groundhog Day.