In recent months we heard a lot of pundits wax hysterical about the chaos and mayhem the federal court trial of a former Guantanamo detainee would bring to New York.
The folks at Keep America Safe - Liz Cheney, Bill Kristol, and Debra Burlingame - called the trial "dangerous," " reckless," and "embarrassing".
But in New York the trial proceeded with no disruptions. No street closures. No increased police presence. And, this week, a federal judge sentenced Ahmed Ghailani to life in jail with no chance of parole.
(A thoroughly disgusting state of affairs - promoted by Paul Rosenberg)
After Ahmed Ghailani was found guilty of participating in a conspiracy to bomb two U.S. embassies in November, a conviction that could land him life in prison (his sentencing hearing is scheduled for January), the usual slate of right-wing pundits took to the airwaves, eager to denounce President Obama for trying the suspected terrorist at all.
Liz Cheney declared that the guilty verdict "signals weakness in a time of war."
John Yoo said prosecutors were "lucky to even get one conviction," adding that "It is really hard to see what the upside is to having civilian trials."
And Laura Ingraham, sitting in for Bill O'Reilly on Fox, called trying terror suspects in federal court "insane," "wrong" and "potentially dangerous."
The pander-to-fear-du-jour for members of congress is a >provision that would prevent the transfer of Guantanamo detainees to the US for any purpose, including for prosecution. Passage of this ill-founded measure could effectively put the nail in the coffin of efforts to end the failed Guantanamo experiment, perpetuating its legacy of arbitrary detention and detainee abuse. It would also leave little alternative but to either release people who should not be released, or detain them indefinitely without charge or trial, or try them in the universally discredited kangaroo courts known as military commissions, which have conclusively demonstrated their inability to try their own way out of a paper bag.
The government's star witness in the sentencing hearing of Omar Khadr continued to talk for hours on the stand today, explaining his view of why he believes that the Canadian captured in 2002 at the age of 15 is "highly dangerous."
In testimony Tuesday afternoon that literally had my jaw dropping, a forensic psychiatrist called by the U.S. government testified that Omar Khadr, the Canadian who Monday pled guilty to a slew of terrorist acts including murder, is too dangerous to be released because he is sincerely religious and became even more devout at the Guantanamo Bay prison.
As the trial of a former Guantanamo detainee proceeded peacefully in a New York courtroom today, U.S. military prosecutors in Cuba were reportedly scrambling to get Omar Khadr, the alleged child soldier on trial for war crimes at Gitmo, to plead guilty to murder. Plea negotiations are reportedly ongoing and his trial, set to resume Monday, has been postponed for a week.
In New York, the government is finally presenting its evidence against Ahmed Khalfan Ghailani, the first former Gitmo prisoner to be transferred to the U.S. for trial.
On Thursday morning, an FBI agent testified about the exhaustive investigation done at the crime scene after the 1998 US embassy bombings in Kenya and Tanzania -- just the sort of complex investigation that FBI agents are trained to do. Having arrived in Tanzania within 24 hours of the bombing, FBI agents secured the crime scene and analyzed and preserved 661 pieces of evidence. Some of that led to the discovery of pieces of the white Nissan truck that had been turned into a bomb, and to its string of former owners.
Unfortunately for the government, though, a broker for the sale of the truck on Thursday afternoon proceeded to contradict everything he'd told the FBI 12 years ago.
Some of the problems in the Ghailani trial are predictable, given that the government imprisoned Ghailani for six years without trial after capturing him in Pakistan in 2004. Because he was interrogated using "enhanced interrogation techniques" and possibly torture in a CIA black site, none of the evidence obtained there is reliable or admissible. And because the government still didn't put him on trial for four years after transferring him to Guantanamo, witnesses may now have a hard time remembering what they told the FBI when it investigated the bombings more than a decade ago. The investigation led to the conviction of four other men in 2001. All are serving life in prison.
What will happen in Ghailani's case remains unclear. As I pointed out earlier, the defense isn't contesting many of the facts the government is now presenting. Yesterday, for example, we heard a whole day of testimony from victims of the bombing -- horrifying stories of being buried under the rubble and finding severed limbs of colleagues and loved ones. Ghailani's lawyers aren't disputing that any of that happened, and conducted hardly any witness cross-examination.
But when it comes to proving that the diminutive Ghailani (friends called him Foupi, meaning "the little one" in Swahili), actually intended to participate in the bombing plot, that's where the government may have a harder time. Though we've already heard testimony that Ghailani, who was around 22 at the time, was at least with one of the people who purchased the truck, the government has yet to present any direct evidence that Ghailani knew what it was being used for. The prosecution's case will likely depend on arguing that Ghailani should have known, based on the circumstances. Given that the trial is expected to last for up to four months, the government will have plenty of opportunity to present its evidence.
Meanwhile, back at Guantanamo Bay, Omar Khadr, the "child soldier" on trial for allegedly throwing a grenade that killed a U.S. soldier, is reportedly considering pleading guilty and serving one more year at Gitmo, then returning to Canada to serve more time there. Whether he'll agree to plead guilty to crimes that don't really exist remains to be seen. (As I've explained before, none of the crimes he's charged with are actually war crimes that belong in a military commission.)
In addition to the legal flaws in the government's case, there's the problem that the military appears to have no forensic evidence demonstrating that Khadr actually committed the crimes he's accused of. That's in part because, unlike the FBI, military investigators don't carefully gather and preserve evidence at a crime scene, making a subsequent prosecution much more difficult. For all these reasons -- in addition to Khadr's likely anger and bewilderment at having been imprisoned by the U.S. for a third of his life without trial -- the 24-year-old Canadian may now have less incentive to cooperate.
Even if Khadr does plead guilty, the legitimacy of that conviction, and of the entire military commissions process, will remain in doubt.
Lawyers made opening statements Tuesday as the trial began in earnest for the first former Guantanamo detainee transferred to U.S. soil. While the government portrayed the slight, baby-faced 36-year-old as a vicious al Qaeda murderer who helped plan two US embassy bombings that killed 224 people, the defense told a very different story. Although not contesting much of the evidence the government plans to present --- about the bombings themselves, its destructiveness and their innocent victims -- defense lawyers argue that Ahmed Khalfan Ghailani was a hapless young Tanzanian duped into helping his powerful childhood friends who, unbeknownst to him, were al Qaeda killers.
What's most surprising about the case is that, based on the government's opening arguments, it's not clear whether prosecutors have any direct evidence establishing that Ghailani intended to hurt anyone, or even knew that the items he purchased in Tanzania were going to be used as a bomb. That knowledge is a critical element of the charges against him -- particularly the multiple murder charges.
When Ahmed Khalfan Ghailani was first transferred to New York from Guantanamo Bay last year, House Republican leader John Boehner of Ohio called it "the first step in the Democrats' plan to import terrorists into America."
More than a year later, Ghailani remains the only detainee from Guantanamo Bay to be brought to the United States. He's scheduled to go on trial starting this week in lower Manhattan. Jury selection begins Monday.
Ghailani is a Tanzanian accused of helping to bomb two U.S. embassies in East Africa in 1998 that killed 224 people. Like the September 11, 2001 attacks, those bombings have been attributed to Osama bin Laden.
In hundreds of legal charges filed with the federal court in New York, Ghailani is accused of having scouted out the American embassy in Tanzania before it was bombed, assembled bomb materials and escorted the suicide bomber to the site. After the bombings, prosecutors say he fled to Afghanistan and rose up the ranks of al Qaeda, forging documents for the group and working as a cook and a bodyguard for Osama bin Laden.
When he was captured in Pakistan in 2004, U.S. authorities deemed Ghailani a "high-value" detainee and sent him to a secret CIA prison for interrogation, where Ghailani claims he was tortured. Indeed, a variety of so-called "enhanced interrogation techniques," including waterboarding, were authorized for use by CIA interrogators on high-value detainees.
Ghailani was transferred to Guantanamo Bay in 2006. Last year, more than ten years after the embassy bombings, he was transferred to the New York prison. The same prison has safely held such notorious criminals as John Gotti and the blind terror leader Sheik Omar Abdel-Rahman.
Critics of Ghailani's transfer warned that his prosecution could be derailed by his abuse in prison and the long delay in bringing him to trial. But the federal judge hearing the case, Judge Lewis A. Kaplan, has denied the defense lawyers' requests to dismiss the trial on those grounds.
Last week, former New York mayor Rudy Giuliani insisted that it would be safer to try Ghailani in a military commission in Guantanamo Bay than in New York City.
Ghailani has already appeared in court for pretrial hearings, however, without incident. New York City police have said that while they will provide some extra security for the trial, the proceedings will not require any of the elaborate and costly measures that New York City officials had warned would be necessary for a trial of the 9/11 plotters. After receiving complaints from local business groups about the potential disruption that trial might cause, Police Commissioner Ray Kelly announced that he would take a range of extraordinary security measures, including a flood of uniformed police officers, checkpoints and thousands of interlocking metal barriers. Mayor Bloomberg estimated the cost at $200 million a year, and the Obama administration soon backed away from the plan.
Despite the huge costs and inconvenience predicted for the 9-11 plotters' trial, no such estimates have been made for the trials of any of those accused of carrying out al Qaeda's U.S. embassy bombing attacks.
Four other men have already been tried and convicted in the same New York courthouse for their roles in the U.S. embassy attacks. All were sentenced to life in prison without parole.
The tribunals in Guantánamo and newly revealed military campaigns are reinforcing some less than admirable qualities. The stain will not wash out as easily as some might want.
For more on pruning back executive power see Pruning Shears.
On Tuesday, the Obama administration is scheduled to begin its first trial of a prisoner held at Guantanamo Bay. Omar Khadr was only 15 when he was captured in a firefight in 2002 with U.S. forces in Afghanistan. Now 23, he'll finally have his day in court. Only instead of an experienced federal court with a long history of trying terror suspects, Khadr will be tried in a military commission, created just last year. In the eight years since President George W. Bush created the first military commissions at Guantanamo, they have convicted only four terrorists - only two in contested trials. Regular federal courts in the United States, by contrast, have convicted more than 400 in the same time period.
Khadr was only nine when his father, an alleged Al Qaeda financier, dragged him from Canada to Afghanistan and put him to work helping his Al Qaeda-connected friends. Khadr has said that he never had a choice. And a Canadian intelligence agency reported, based on interrogations of Khadr in 2003, that Khadr viewed Al Qaeda "through the eyes of a child" who didn't understand that his father's activities were linked to terrorism.
What's more, based on what's been presented in pretrial hearings so far, there appears to be little or no evidence, other than "confessions" extracted under highly suspicious circumstances, that Khadr actually committed the most serious crime he's accused of: throwing a grenade that killed a U.S. soldier.
Even if he did, Khadr shouldn't be tried in a military commission.
Under international law, a child captured in combat is supposed to be treated as a victim rather than a warrior, offered rehabilitation in custody and eventually repatriated home. Khadr, who has relatives in Canada, was offered neither option.
In addition, the crime of murdering a U.S. soldier isn't actually a war crime. In war, it's not a crime to target the other side's soldiers. But because Khadr was a civilian, rather than a member of a regular foreign army, throwing a grenade is a criminal act that could be prosecuted in a regular criminal court. Although the military commission rules characterize his crime as one that falls within the commissions' jurisdiction, the legal authority of the commission to prosecute conduct that was declared a war crime after the act was committed, or ex-post facto, remains legally questionable.
Khadr's lawyer has also questioned the legality of the military commissions as a whole, filing an appeal just this week with the Supreme Court arguing that the commissions are unconstitutional because they target only "aliens"--people who are not U.S. citizens. Though the courts have so far punted on this issue, it's clear that even if Khadr is convicted, he'll have several strong grounds for appeal.
So why is the government bringing this case in a military commission?
Perhaps the government hopes that Khadr's statements, which he claims were extracted by various kinds of torture and abuse, will be allowed into court as evidence. Although Khadr's lawyer hasn't yet had the opportunity to present all the evidence of his client's treatment at Bagram and at Guantanamo Bay, what's come out at pretrial hearings so far is that when Khadr was captured by U.S. soldiers in July 2002, the teenager had been shot twice in the back, blinded in one eye and had a face peppered with shrapnel. Interrogators at the Bagram air base took to calling him "Buckshot Bob." But that didn't stop them from interrogating him while he was still recovering from life-threatening wounds and strapped to a hospital gurney. Using what the military calls a "fear up" technique, an interrogator testified, Khadr was told a story about another prison just like him who refused to cooperate - and who then was gang-raped and killed in an American prison.
Official documents also reveal that at Guantanamo, Khadr was subjected to the military's "frequent flyer" program -- meaning he was moved every three hours for weeks at a time to keep him from sleeping prior to interrogations.
So just how reliable are the statements he made, either at Bagram or at Guantanamo?
Now, after eight years at Gitmo, Khadr insists he's not guilty. He has also at times said he'd boycott his own trial because he thinks the whole military commission process is a sham.
It's easy to understand why. Now 23, Khadr, has been interviewed by dozens of interrogators, each time led to believe that his cooperation would spare him from violence and lead to his release. He told interrogators what he thought they wanted to hear, but that release never happened. If Khadr had been imprisoned in the United States, he would have been tried and either convicted or released long ago. But instead, Khadr has been held without trial on a secluded prison camp in Cuba for nearly a decade with little opportunity to defend himself.
Human Rights First has been observing the military commission hearings since their inception in 2002. Repeatedly, our observers have been astounded by the injustices, inefficiency and wholesale fiasco that many of the inexperienced and legally questionable commissions' proceedings produce.
That's partly because the commissions are so new - created by a law passed in 2009. The first military commission system, created by the Bush administration, was ruled unconstitutional by the U.S. Supreme Court in 2006. As a result, there's is almost no legal precedent to guide commission judges. The Military Commissions Manual, meanwhile, was only issued in late April - on the eve of Khadr's first pretrial hearing. The resulting confusion offers yet more opportunity for Khadr and anyone else convicted in a military commission to challenge their convictions on a broad range of legal grounds. Decisions on the prisoners' fate will be delayed that much longer.
There's another reason that this whole military commission system leaves me scratching my head: the extravagant expense involved. Keeping the Guantanamo Bay prison camp and military commission system open for fewer than 180 detainees costs taxpayers a lot of money. Construction and renovations to the camp have cost about $500 million so far; operating costs are another $150 million every year. The Washington Post recently estimated the bill, much of which has been paid to KBR and Halliburton, has so far exceeded $2 billion. Just the cost of flying dozens of journalists and observers like myself, plus all the lawyers involved, to and from Guantanamo to attend each of these hearings so the government can claim that they're "public" is astronomical. Meanwhile, federal courts and secure prisons in the United States are readily available and already paid for. And the government doesn't have to cover anyone's costs to get there.
I'm in Guantanamo Bay this week to observe the end of Khadr's pretrial hearings and the beginning of his trial in a military commission. But I doubt I'll gain any better understanding of why the Obama administration chose to try him there.
Update: Lt. Col. Jon Jackson, Omar Khadr's military defense lawyer, just gave a quick news conference in the sweltering airplane hangar here at the Gitmo base. (Only prosecutors are allowed to use the indoor air-conditioned rooms for press conferences.) "This case will echo in the future," Jackson said, noting that it will set a sad precedent for the United States' right to try a child soldier as a full-fledged war criminal.
It will also create a lasting legacy for the Obama administration."Forever the Obama administration will be remembered as starting the military commissions with a case of a child soldier," Jackson said.
Somehow that doesn't seem like the sort of legacy Obama had in mind when he vowed to close the Gitmo prison down on his first day in office.
Last week, U.S. District Judge Henry H. Kennedy, Jr. released a forceful 36-page opinion in the case of a Guantanamo detainee that would ordinarily be shocking. Sadly, such opinions are now so common that, except for one news story and a few particularly alertbloggers, they get barely a mention in the news.
In his opinion, issued in May but publicly released just last Thursday, the Judge found that a young man from Yemen, seized at the age of 17, has been imprisoned in the United States detention center in Cuba for the past eight years without cause. Although five different times since his arrest officials reviewing his case said Odaini should be released, Obama administration lawyers argued against his petition for habeas corpus, insisting that because the Yemeni student had spent one night at the guest house of a fellow student’s family, and because he had a medical visa rather than a student visa (he said his father had gotten him a medical visa because it was cheaper), the U.S. government can lawfully continue to imprison him.
If that sounds bizarre, it’s not, really. Pursuant to the Obama administration’s interpretation of the Authorization for the Use of Military Force, or AUMF, it says it has the authority to detain indefinitely anyone, anywhere in the world who it suspects is affiliated with the Taliban, al Qaeda or associated forces. And if its position in the case of Mohamed Hassan Odaini is any guide, then it interprets that right very very broadly.
Odaini is one of many young men seized in the weeks and months after September 11, 2001 during raids on guesthouses in Pakistan. He has consistently claimed that he was a student at Salafia University who was invited for dinner at a fellow student’s home and spent the night there. But that home was also a guest house, and some al Qaeda fighters stayed there. Although none ever named Odaini as being connected to their cause, the United States insisted it can infer based on his overnight stay that Odaini was an al Qaeda fighter.
The other men seized in the raid corroborated Odaini’s story that he was a student with no ties to al Qaeda or terrorism. As Judge Kennedy notes in his opinion, U.S. government interrogators and officials, too, quickly came to believe Odaini’s consistent claim. Indeed, five different times, government interrogators or task forces independently determined that Odaini should be released. Each time, that recommendation was ignored.
Then in January, President Obama suspended the transfer of any detainees to Yemen, Odaini’s home country, after the attempted Christmas day bombing by a Yemeni national. At that point Odaini’s lawyer, who had until then assumed his client would be released, as recommended, resumed his petition for habeas corpus to the federal court.
In ruling on that petition, Judge Kennedy said that the evidence presented to the court “overwhelmingly supports Odaini’s contention that he is unlawfully detained.” Reviewing the evidence in painstaking detail, including Odaini’s and other detainees’ statements, plus summaries of interrogation and intelligence reports produced by the government, the judge himself seems shocked that the government would be arguing the lawfulness of Odaini’s detention based on the paucity of proof.
The government repeatedly “distort[s] the evidence,” writes Judge Kennedy, concluding that the only way to believe the government’s position is “if one begins with the view that Odaini is a part of Al Qaeda and searches for a way to believe that allegation regardless of its inconsistency with an objective view of the evidence.”
The judge concludes:
Respondents have kept a young man from Yemen in detention in Cuba from age eighteen to age twenty-six. They have prevented him from seeing his family and denied him the opportunity to complete his studies and embark on a career. The evidence before the Court shows that holding Odaini in custody at such great cost to him has done nothing to make the United States more secure. There is no evidence that Odaini has any connection to al Qaeda. Consequently, his detention is not authorized by the AUMF [Authorization of the Use of Military Force]. The Court therefore emphatically concludes that Odaini’s motion must be granted.
In concluding that Odaini’s detention “has done nothing to make the United States more secure,” Judge Kennedy may as well have been talking not only about this one case, but about the much broader problems caused by the government’s interpretation of the AUMF and international law. After all, indefinite detention at Guantanamo Bay and Bagram, the continued authorization of abusive interrogation techniques under Appendix M of the Army Field Manual, the prosecution of a handful of terror suspects by military commission, and the controversial drone attacks or “targeted killings” outside declared zones of conflict have all served to foment anger at the United States and been used to justify insurgent attacks. Meanwhile, none of those policies have been shown to have made the United States any more secure.
The administration appears not to be learning from past mistakes, however. Just as it refused to concede the case of Mohamed Odaini, it’s insisting that it maintains the authority to continue to detain indefinitely without trial some 48 more Guantanamo detainees who it has said cannot be tried yet are too dangerous too release – based on evidence that it acknowledges would not hold up in court.
Even more troubling is the administration’s continued detention of some 800 prisoners at the Bagram air base in Afghanistan, since the courts have ruled that those prisoners are not even entitled to habeas corpus review, as Odaini finally obtained here – eight years after his capture.
Last week, 15 former federal court judges urged Congress not to write a new detention law to authorize indefinite detention of suspected terrorists, because independent federal judges are best equipped to decide who’s detainable under the law.
The case of Mohamed Odaini is yet another reason to listen to them.
Update: I was thrilled to see this editorial in the Washington Post this morning pointing out that Odaini's case puts the lie to the still widely-held assumption that Guantanamo remains populated with "the worst of the worst" and urging Odaini's repatriation. Unfortunately, as the Post notes, the Obama administration's ban on transferring any Gitmo detainees to Yemen means Odaini is likely to stay stuck in prison even longer, despite Judge Kennedy's scathing criticism and determination that his detention is unlawful.
First, on Thursday, the Senate Armed Services Committee passed a bill to stop the Obama administration from purchasing a new prison that could house detainees now at the prison camp at Guantanamo Bay under lock and key here in the United States.
Then on Friday, just as the Memorial Day weekend got underway, the House of Representatives voted to stop the president from transferring any of the Guantanamo detainees to the United States for any reason - including a trial.
But then on Saturday, the Washington Post reported that actually, only about 10 percent of the 240 detainees held at Guantanamo Bay when President Obama took office were "leaders, operatives and facilitators involved in plots against the United States." The majority were merely low-level fighters. About 5 percent of the prisoners couldn't be categorized as anything at all.
The report was based on the findings of the administration's Guantanamo Review Task Force, provided to the administration last January. Those findings were never released publicly, and only sent to select committees on Capitol Hill last week. The administration reportedly didn't share the information earlier because, in the wake of the failed Christmas-day bombing attempt, members of Congress had displayed little to no interest in closing the Guantanamo Bay prison camp.
Last week's events reveal that many members of Congress continue to show little interest in the real facts about Guantanamo and the detainees held there. How else to explain the stubborn refusal to allow any of them to touch United States soil, even to stand trial, regardless of whether there's any reason to believe that they're actually terrorists?
The Obama administration's task force that deemed most of them low-level foot soldiers was made up of more than 60 career professionals -- including intelligence analysts, law enforcement agents and prosecutors. They reviewed capture information, interview reports, CIA, FBI and NSA records, as well as files on the detainees' behavior since their imprisonment. Notably, the Bush administration hadn't even bothered to look at much of this evidence, the task force reported, so last year was the first time it had been systematically compiled and reviewed. Senior officials from six different agencies, including the defense department and Homeland Security, approved the task force's findings.
Still, that seems to be having little impact on the 282 lawmakers who voted to ban them all from coming to the U.S. for trial. Many persist in portraying all of the 180 remaining detainees as "the worst of the worst," as former defense secretary Donald Rumsfeld called them.
"We can't stop every terrorist from coming to the United States but we can stop the ones that are coming from Guantanamo," said Rep. Randy J. Forbes, the Virginia Republican who offered the House amendment prohibiting the movement of detainees to the United States.
Meanwhile, a long list of retired military leaders have said that keeping the Guantanamo Bay detention center open threatens national security, rather than improving it.
While members of Congress blow hot air about threats they imagine from suspected terrorists confined in Supermax prisons on U.S. soil, they continue to ignore some very real national security dangers that they have the ability to do something about. As the New York Times pointed out over the weekend, Congress has failed to streamline its oversight of national intelligence and refused to prohibit or even adequately regulate companies' use of toxic gases that could easily be weaponized by terrorists for use in a future attack.
It's high time for lawmakers to stop posturing around imaginary threats, which prevents the federal government from bringing actual terrorists to justice and releasing those who don't deserve to be in prison. That - coupled with tackling tangible threats to homeland security that loom right here in our own country - would be the real way to enhance U.S. national security.
What emerged from another day of testimony in the Omar Khadr military commission case today was the portrait of a young boy ordered by a powerful father and his al Qaeda associates to do bad things. And now, eight years of imprisonment later, that child is being prosecuted for it.
Today's hearing in the military commission case of Omar Khadr was once again fraught with confusion, complication and delay. This time the problem appeared to be the military judge's refusal to question military procedure - even when it might be causing significant harm to the defendant.
Opening statements today in the suppression hearing in the Khadr case lay out how both sides plan to argue the motion, which aims to stop the government from using any confessions by Omar Khadr to any of the crimes alleged.
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